I have been watching the events at my alma mater that led to the resignation of MU System President Tim Wolfe and Chancellor R. Bowen Loftin from afar. While I had heard inklings of discontent, I had no idea it was at this point until the football team got involved.

73741_1401374325373_749181_nOn many levels, I am trying my best to understand all the nuance involved, but am having difficulty. I haven’t been back to campus for five years to, of course, watch a football game.

Do I believe there is racism in Columbia, Missouri? Probably. Just like there probably is anywhere else in society. As a white male, I am probably not in a position to fully understand.

From the published reports, the protesters’ complaints appear to be isolated events that were handled poorly by the school administration or without enough concern. Part of the students’ concerns centered on how their protest at the Homecoming Parade was handled which you can watch here.  Things also did not go well when Wolfe was confronted in Kansas City a few weeks later.

Another complaint centers on racist taunts by unknown passersby to the African American young man who was elected student body president and homecoming king. Painting an entire school as racist, a school that elects a gay African American student to be president and homecoming king, is unfair. You can read about the events that led to the resignations here.

Should the administration have handled it better? Obviously. Letting it get to the point where the football team threatened not to play means it wasn’t handled the right way and probably left the school with few options.

Were the protestors’ demands unreasonable? Probably. Asking the system president to write a handwritten apology to the Concerned Student 1950 demonstrators and hold a press conference reading the letter while acknowledging his “white male privilege” and admitting to “gross negligence” takes away from the otherwise legitimate concerns raised. To throw in some law in the discussion, demanding racial quotas for the faculty and staff (“We demand that by the academic year 2017/2018, the University of Missouri increases the percentage of black faculty and staff campuswide to 10%) is probably unconstitutional.

One of the students then began a public hunger strike until the demands were met. Then, the football team got involved and refused to play until the hunger strike ended.  Head coach Gary Pinkel supported his players. Was this the right move? It certainly moved the needle, but I worry about whether a handful of players and then the team, as a whole, were leveraged. It is both encouraging, and somewhat alarming, to see young men take their position of prestige as SEC college football players and use it to get involved. Will this set a precedent and where is the line? Reading Tigerboard (admittedly not a place for cool-headed, well-reasoned analysis), the fan reaction was certainly mixed.

LoftinAbout 24 hours after the football team’s actions became public, the president resigned followed by the chancellor. Although the chancellor’s resignation becomes effective at the end of the year and may have had more to do with issues other than the handling the student protests. Ironically, the football team may be worse off with a new chancellor less supportive of the athletics department.

In response, Mizzou has promised to implement changes within the next 90 days which include:

  • The creation of a new position for a Chief Diversity, Inclusion and Equity Officer within the UM System which has already been filled on an interim basis
  • A review of UM System policies regarding staff and student conduct
  • Additional support for students, faculty and staff who have “experienced discrimination and disparate treatment”
  • Additional support for the hiring and retention of diverse faculty and staff
  • the creation of system-wide and campus-based diversity, inclusion and equity task forces
  • an education training program for holders of the university’s top leadership positions

Had the administration taken these steps prior to the football team’s involvement, would there have been two resignations? We may never know because we don’t know what would have happened with the hunger strike and what would the reaction have been had the administration gone 90% of the way but not conceded to all of the demands (which they could have never done). It may have gone a long way to assuage opinion of the public and maybe, more importantly, the football team.

Yes, this story does speak to better crisis communication techniques and the importance of getting in front of a controversy. The number one lesson for crisis communications is to be prepared and to have a plan. Once the controversy began, the school should have had a singular unified message.

If bombarded off campus (or even during the Homecoming Parade), the proper response would have been a polite refusal to engage at that time as it was not the appropriate time and place. There could have been a somewhat prepared “holding statement” such as “we take these issues seriously and are taking steps to ensure that every student is provided the best environment we can provide. This is not the time or place to get into the specifics, but we will be providing more details soon and invite continued discussions on the topic in the near future.” It would not have placated the protesters at the time, but it would not have added more fuel to the fire. A flagship state university is a much different animal than a private business, but the same basic tenets apply.

But, I justify this longer than usual and personal musing based on what happened next. Watch this:

As my wife gets tired of hearing, the University of Missouri is home of the best journalism school in the world. (I linked to something so it has to be true!) The student journalist handled this situation perfectly. The protestors — not so much.

Here are some basics about the First Amendment. The protesters have a right protest in the public parts of campus. And, yes, the very same First Amendment gives the journalists the right to cover the story from public property.

For the legal wonks, the Carnahan Quadrangle is very likely a limited or designated public forum being that it is on a university campus. Content-based speech restrictions are therefore subject to strict scrutiny. The school, however, can put reasonable time, place and manner restrictions as long as the restrictions serve an important governmental interest and the restrictions are narrowly tailored to serve that important governmental interest.

No one kept the protestors from doing their thing. Instead, the protestors tried to keep the media from doing theirs – covering the protest, which ironically is normally what protestors want.  It is true that journalists have no greater rights than non-journalists when it comes to accessing public property, but when you engage in a protest on public property, you can’t claim some of the public property as your own. The journalists had a right to be anywhere on the public grounds to cover the story.

The photographer handled the situation well making the Mizzou Mafia proud. You can read some perspectives of the journalists covering the story here and here.

More troubling, however, was the conduct of some of the Mizzou faculty who, in my opinion, mistreated the journalist and should have known better. For example, near the end of the video, a Mizzou professor of mass media (with the School of Communications and not the School of Journalism) tried to grab the camera and then yelled, “Who wants to help me get this reporter out of here? I need some muscle over here.” Ironically (a repeated theme to this story), this same professor had asked for media attention a few days prior. Unfortunately, this strange treatment of journalists is detracting from the protester’s efforts to further their true cause.

I don’t believe MU System President Tim Wolfe, or Chancellor R. Bowin Loftin, or Mizzou itself, is, in any way, racist. They could have handled the situation better and reacted quicker. Their downfall is a result of that failure. But, shouldn’t we hold the protesters, or at least the faculty that joins the protesters, to the same standard? The faculty member could have handled it better and, perhaps there should be some repercussions, on her end. The School of Journalism has already started distancing themselves from the faculty member and released this statement in support of the journalists. (Here’s another perspective from a law professor at Mizzou and more from one my former instructors at the J-SchoolStacey Woelfel).

The bad news is that it looks like two men who worked hard and wanted the best for the university lost their jobs. Another person who appeared to be a well-liked professor may lose hers, too. The whole thing is a circus.

The good news is the hunger strike is over, there may be some changes to redress the situation, and hopefully both the administration and the protesters can learn from this.

For the rest of us, life will go on and I will continue to support my alma mater from afar. After all, there is a football game to played on Saturday.

Update: The professor in the video has apologized and resigned from her “courtesy appointment” with the J-School.

In part one, we discussed how fair use may apply to the media’s use of social media images.  In part two, we looked at how the various sites’ terms of service come into play.  Today, we look at the one prominent case in this area and describe some best practices.

 The Agence France-Presse Twitter Case

There is just one well-known case involving the media’s use of social media images.  Agence France-Press and the Washington Post both used images of the Haitian earthquake put on Twitter by photographer Daniel Morel.  A judge rejected AFP’s argument that it could use the images because they were put up on Twitter.  The Twitter terms of service did not provide that the photographer gave his rights in the images away or grant anyone else the right to use the images outside of Twitter.  After denying AFP’s motion for summary judgment, the case, as far as I can tell, is still pending.

Best Practice

1.   Make sure it’s legit

It’s easy to get duped.  Jimmy Kimmel showed us that.  This is more a producer/editorial function rather than legal, but it’s worth noting here.

2.    Get permission

The good news about social media is that it makes it easy for you to reach out to ask permission.  You don’t need any magic language and you don’t need a lawyer to draft anything for you.  Send the person who posted the image – “Hi, I’m the producer, we are considering using this image.  Did you take it and would you mind if we used on the news?” It is not uncommon for there to be a small payment, but most amateurs won’t ask.

3.     Make sure you have permission from the right person

In the AFP case, AFP did reach out and tried to get a license to use the images.  They just did not get them from Morel — the actual photographer.  The AFP staffer saw the images on Twitter and reached to the account where the staffer saw them.  Unfortunately, that person had already lifted them from Morel’s account.  AFP then distributed the images to Getty and Morel was not pleased.   You can read more about the facts of the case here.  For those of you who want some more legal beef on the case, check out Professor Goldman’s post here.

4.     Don’t make promises in your request or box yourself in

Because of fair use, you don’t have to ask for permission.  Even if they say no, you might be able to use it.  Therefore, don’t send a message that implies you are only going to use it if you obtain their permission or suggests that you have to have it.  My example above would be fine.  Sending a message that says: “We have to hear from you soon to know whether we have your permission” implies it’s a requirement and could be used against you if there is a trial later.

5.     Attribution

If you are unable to get permission, then you should at least provide attribution.  Many amateurs would be satisfied with a little notoriety from the attribution.  Attribution won’t get you out of a lawsuit if they get mad, but it may help show you were acting in good faith or alleviate any anger so the person reconsiders whether they really want to file a lawsuit.

The Poynter Institute’s Adam Hochberg wrote an article titled “Twitpic, Flikr Use by Eyewitnesses Raises Questions for News Orgs About Image Rights, Compensation” that includes a good discussion of these issues.  According to the article, the Associated Press requires editors to contact all “citizen photos” and verify each image for both authentication and permission.  The article provides several ideas for an image policy and some of the issues involved.

What is the real harm?

The main point of this series has been to avoid any liability and provide some guidance and good practices.  I am not saying the minimal likely harm should be part of the decision-making process as to whether you violate a copyright.  When dealing with fair use, there is risk, but it is usually not a huge risk.  Assuming it is a close call (and you are not scooping or stealing some paparazzi images of the Royal Baby), you are likely looking at having to pay either actual damages or statutory damages.  The actual damages could be the market rate for the license to use the image.  The statutory damages, on the other hand, are between $750 and $30,000 per work.  If the fair use analysis is a close call and you use best practices, you are likely to be on the lower end of the statutory damages.  In the AFP case, the court ruled he damages would be assessed on each image used by AFP and not on each time it was subsequently downloaded or used after AFP sent it to Getty.  Whether you multiply $5,000 times 8 or 8,000 makes a huge difference.

If you mess it up, your biggest liability is likely going to be the bad P.R. and your legal bill.

Last time, we looked at whether the media can use images from social media sites applying fair use to several typical situations.  Today, we look at the specific terms of service of various popular sites to see if some make it easier than others for the media to use images.

Facebook:

Plain English:  Each user allows Facebook, and only Facebook, to do what it wants with the images subject to the privacy settings.   It gives no others any rights through its terms.  Facebook could sublicense to the image to you, but I have not heard of this being done for the purpose of news reporting.  As we discussed last time, the fact that someone puts up the image for the world to see can help with the fair use argument.

Twitter:

In plain English:  The same as Facebook.  Interestingly, Twitter includes a “Tip” section where it says:  “This license is you authorizing us to make your Tweets available to the rest of the world and to let others do the same.”  There is certainly no issue retweeting images and posts, but the “tip” seems to be more broad because it would allow the media to repost images and posts off of the Twitter platform.  The Twitter terms do not expressly allow that, but this language could help argue it does.

Twitter also reserves the right to sublicense whatever is provided, specifically allowing Twitter to make it available to other media and platforms without any compensation to the user.  The tip says:  “Twitter has an evolving set of rules for how ecosystem partners can interact with your Content. These rules exist to enable an open ecosystem with your rights in mind. But what’s yours is yours – you own your Content (and your photos are part of that Content).”

While this is certainly not a green light to re-use images from Twitter, it could help a media outlet argue fair use.

LinkedIn

Plain English:  The terms contemplate that your images on LinkedIn may be copied, but they do not expressly allow it.  The terms warn “[a]ny information you submit to us is at your own risk of loss.”

Pinterest

Plain English:  The site had its own copyright issues in the past.  It tries to make it clear that anything a user submits is meant to be shared as much as possible.  The terms say: “You grant Pinterest and its users a non-exclusive, royalty-free, transferable, sublicensable, worldwide license to use, store, display, reproduce, re-pin, modify, create derivative works, perform, and distribute your User Content on Pinterest solely for the purposes of operating, developing, providing, and using the Pinterest Products.”  This means they want you to share what you find on Pinterest, but only share it on Pinterest — not the front page or the 5:00 news.  

Pinterest has a section called “More simply put” that says “if you post your content on Pinterest, it still belongs to you but we can show it to people and others can re-pin it.”

Vine

Plain English:  Vine is allowed to sublicense content, but there is nothing that allows the general public to do whatever it wants with the videos.

Instagram

Plain English:  Instagram may sublicense the images, but there is nothing in these terms that would specifically allow the media to use the images.

Up Next

In our conclusion of this series, we will discuss a couple of cases and talk about the best practices.

 

The answer is one that frustrates people the most — it depends.  In most circumstances, you run the risk of violating the copyright of the person who took the picture, so the best practice is to seek permission first (more on that in part 3).  But, let’s assume you can’t get permission — after all, you are on a deadline.  So, let’s look at three different scenarios and the “fair use doctrine.”

The Fair Use Doctrine 

The most common response you hear from the journalist is that I’m a reporter so I can use these pictures as a “fair use.”*  Fair use is an affirmative defense to a copyright violation meaning, it is the media’s burden to prove the use was fair.  The Copyright Act specifically lists “news reporting” as an example of what could be fair use.  The Supreme Court, in the one case where it looked at the news reporting fair use angle, ruled that Congress’s inclusion of “news reporting” gives the media a good argument, but there is no presumption that it will always prevail.

Fair use is a factually-specific inquiry and there is no bright line test.  Courts consider these four factors:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

For most commercial news gathering sites and stations, the courts find they are engaged in commercial endeavors – you sell advertising.  The media usually loses this argument.

(2) the nature of the copyrighted work;

Was this a professional photographer taking pictures to sell to the public or is this a less “artistic” photo already being freely shared with the public?  Most likely, if the photograph is being used for news and it is a simple Facebook photo, this factor will weigh in favor of the media.  The issue of whether the image, in and of itself, is newsworthy also comes into play.

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

This is more applicable to excerpts of videos, books and music and is usually considered a wash when dealing with images.

(4) the effect of the use upon the potential market for or value of the copyrighted work.

This is why you may have heard that as long as it is an amateur’s photo you can take it. That may help you with this factor, but this fact alone will not give you the green light.

The Picture of the Non-Celebrity

Neither a scandalous teacher nor, alas, a lottery winner

The local schoolteacher is caught in a scandal with a student.  Or, let’s be positive for once, the local man wins the lottery.  You need a picture of the person so you turn to Facebook or LinkedIn.  Why not just grab it? After all, they put it on the site for the world to see.

First, you want to check the terms of service from the social media site where you found the image (that’s #2 in this series).  I am not aware of a case where an average citizen has sued the media (as opposed to the school district for using an image in an what not to do presentation) for using their Facebook picture.  This is good and bad in that no one has ever ruled you should not use the image, but no one has said it is 100% OK either.

Assuming the license from the social media platform’s terms of service do not give the general public the right to do whatever they want with the image, you should go through the fair use analysis.

Fair Use Factor 1:  Media outlets that take advertising are engaged in commercial activities although the primary goal may be to educate the pubic.  Unless, you are a public interest group or non-profit, you are likely going to come out on the wrong side with this factor.

Fair Use Factor 2:   The more the image itself is newsworthy, the more likely the media will be able to use it.  If the image is one of the teacher with the student that is subject of the scandal, then that image is newsworthy and more likely a fair use.  If the picture shows the subject engaged in the activity related to the story, then it is more likely a fair use.  Also, the further away your purpose of using the image is from the original purpose of the image, the more likely you can use it.  For example, in cases where images from a brochure were used in a news story about Oliver North and his new endeavor and nude modeling pictures of a pageant winner distributed prior to her win were both considered fair use because, in part, the media’s use was different from the original purpose and the images were newsworthy.

Fair Use Factor 3:  This issue is usually a wash because still images require, for the most part, use of the whole thing or at least the key part of it.   The media may be able to say they only used one image out of a large portfolio or album from a social media profile, but this argument has not been made in court to my knowledge.

Fair Use Factor 4:  If the image is from a professional or a free lancer, you are going to lose this battle.  For example, a local Los Angeles station used video of a beating shot by an independent journalist without permission destroying that independent journalist’s ability to license the video for money.  Would the same apply to a Facebook image?  If we are talking about the typical profile picture, usually put up by amateurs for as wide dissemination as possible without any thought to the market value, then the media would probably prevail with this part of the argument.  If the scandal-ridden teacher has pictures  of her and the student she is not able to immediately hide, she could make an argument that because of new events, there is a market for the now sought-after pictures that she could provide on an exclusive basis.  On the flip side, someone probably has access to them ruining any “exclusive” commercial value.

As you have probably figured out by now, there are a lot of factors that go into the analysis and you would be foolhardy to have a hard and fast rule.  This analysis is simply to give you an idea of what issues come into play.  The decision should ultimately be made by the editor/news director, and if there is time, legal.

The Breaking News From Twitter

Almost everyone has phones with cameras and almost everyone has access to social media. Therefore, you will see a lot more “breaking news” caught by everyday citizens who post the images.  I even took an image of a fire and posted it to Facebook from my office.  Again, assuming you don’t have permission, we have to look at the fair use factors.

Fair Use Factor One:  Same as above.

Fair Use Factor Two:  By the nature of the hypothetical, this assumes the image is newsworthy which would give the media a slight leg up in the analysis.

Fair Use Factor Three: This is usually going to be a wash.

Fair Use Factor Four:  We are assuming these are truly amateurs and not professional who are posting the pictures.  If there are 50 other people near the fire/stand-off/crash/revolution taking pictures and posting them, the less likely there is commercial value to the images.  If, by some dumb luck, the Average Joe is hiking in the woods and sees the first talking moose, then there may be commercial value to the “exclusive” nature of the images.

A moose I saw on a hike. It did not talk.

As you can see, there is still no bright-line rule.

The Picture, Itself, Is Newsworthy

Unfortunately, the compromising image of the politician (thanks Anthony Weiner) is news in and of itself.  The same goes for the nude images of the beauty pageant winner or a news story about an image.   The mere existence of these images is the story.  You can’t tell the story without them.  While this may be the easiest analisys, in can still be perilous.  You most likely will be able to use it, unless someone has an exclusive or there is commercial value to the copyright holder.

For a legal article on this topic from 2011, check out Professor Daxton R. “Chip” Stewart’s article, “CAN I USE THIS PHOTO I FOUND ON FACEBOOK? APPLYING COPYRIGHT LAW AND FAIR USE ANALYSIS TO PHOTOGRAPHS ON SOCIAL NETWORKING SITES REPUBLISHED FOR NEWS REPORTING PURPOSES” in the Journal of Telecommunications and High Tech Law.

*The other common excuse is that the pictures are in the public domain because they were posted on Facebook for the world to see.  That’s just not legally correct unless the specific social media platform says that is the case.  We will examine that in part two.

Sometimes, I like to talk basics and this time it’s something as basic as “tell the truth.”  I’ve never had a client come to me and say, “I would like to lie as much as possible in my advertising, can you help me?” It’s never that simple. 

The general rule is advertising cannot be deceptive – which means it should be the whole truth and fair.  You should not have to justify a claim with a lot of explanations. It’s a matter of context and not simply a matter of whether the statement, in a vacuum, is technically true.

According to the FTC’s Deception Policy Statement, an ad is deceptive if it contains a statement – or omits information – that “is likely to mislead consumers acting reasonably under the circumstances; and is ‘material’ – that is, important to a consumer’s decision to buy or use the product.” An ad is unfair if “it causes or is likely to cause substantial consumer injury which a consumer could not reasonably avoid and it is not outweighed by the benefit to consumers.” The FTC looks at advertisements from the reasonable consumer standpoint. If a scientist may understand the half-truth in your claim, but Aunt Myrtle surfing Facebook would be fooled by it, you might find trouble.

The FTC uses the following example to illustrate their contextual, reasonable circumstances approach. If your mouthwash says it kills the germs that cause the cold, that may technically be true. It implies to the average consumer, however, that your mouthwash prevents colds even though you never said that. Therefore, you could be in trouble.

Advertising agencies need to be wary as well. You can’t simply rely upon the client to be truthful because you can also be held liable depending on the extent of the agency’s participation in the preparation of the challenged ad and whether the agency knew or should have known that the ad included false or deceptive claims.

The Online Disclosure

The same rules apply online and off.  Disclosures should be clear and conspicuous so consumers will see and understand them. Disclosures tucked away in a small link not clearly identified or on a completely separate page are not likely to be effective. There is no hard-and-fast rule about the size of font or location of the disclosure or link; the FTC generally asks whether a consumer is likely to find it.

When using online disclosures, you should place disclosures near, but certainly on the same screen where the claim is. Links are acceptable as long as the link is obvious, appropriately labeled and easy to find. You should track the click-through rates on the disclosure in case you ever have to defend yourself. Make sure the disclosure is made prior to purchase and not hidden on the last page of a multi-step ordering process.

The Comparison – Four out of five clients say my lawyer can beat up your lawyer.*

Comparative advertising is legal — if truthful. You can generally use the competitor’s name and trademarks when making the comparison too. The Lanham Act, however, gives your competitor the right to sue if the comparative advertising is deceptive. If you are going to use comparative advertising and surveys, make sure the sample is large enough to be legitimate. Asking my five best clients and only my five best clients would not be a legitimate survey — nevermind that my fifth best client doesn’t love me as much as I thought they did.

Case Studies

The FDA Doesn’t “Like” Facebook

The Food and Drug Administration issued a Warning Letter on February 26, 2013, because a company “liked” a Facebook post from one of their customers. The customer wrote: “PolyMVA has done wonders for me. I take it intravenously 2x a week and it has helped me tremendously. It enabled me to keep cancer at bay without the use of chemo and radiation…Thank you AMARC.” The FDA said “liking” the post was an endorsement of the message and therefore it was as if the company promoted the drug as a cure or treatment for cancer in violation of the Federal Food, Drug and Cosmetic Act. You can read more here.

Pomegranate Juice makes you healthy, more attractive and just an overall better person.

The makers of POM Wonderful 100% Pomegranate Juice claimed their products could treat, prevent or reduce the risk of heart disease, prostate cancer and erectile dysfunction. While there was some evidence to arguably make such claims, the advertising was still considered deceptive by the FTC and later upheld by a judge. The FTC issued an order prohibiting POM from making any such health-related claims unless it is supported by two randomized, well-controlled, human clinical trials. POM Wonderful spent $35 million in peer-reviewed scientific research and relied upon “centuries of traditional medicine and plain common sense have taught us: antioxidant-rich pomegranate products are good for you.”

Undoubtedly, there are some health benefits to pomegranate juice. Saying the juice helped “cheat death” may have taken things too far. In the ruling, the FTC examined the “net impression” of medical claims (see the mouthwash example above) even if POM did not expressly claim the juice was a cure all. The FTC also did not let POM off the hook for using such qualifiers as “preliminary,” “promising,” “may,” or “can” when it came to health claims.

When is a foot long not 12 inches?

As first publicized by a teenager in Australia through Facebook with the picture to the left, Subway’s “footlongs” do not always measure up. Now, the lawyers have filed several pending state and federal class action cases. Even product names, as opposed to marketing campaigns, can bring on a challenge. If you are going to call something a footlong, it should predominantly be twelve inches long.  The results of this case may depend on the percentage of footlongs not actually twelve inches and whether 11 and ¾” sandwiches are deceptive. On the other hand, Subway put lots of stock in branding the “footlongs,” which is a promise to the consumer they should keep.

So, what can you do?

If you make a claim, have the evidence to back it up which means a “reasonable basis” to make the claim including “competent and reliable scientific evidence” for health and safety claims.

Stay subjective. Saying your drink tastes great or that this is the best column ever is something the consumers can judge for themselves. Opinions are not verifiable facts and rarely can create liability.

Be careful online.  Your “liking,” “re-tweeting,” or other actions can be an endorsement of someone else’s comments and violate regulatory rules that govern your industry.  If you are in those industries, train the people running the official company channels.

The Business Guidance section of FTC’s website provides some good resources to help stay out of trouble.

*comments made in jest and not subject to verification unless you ask my mother.

Our last back to basics was on the use of images on the web.

The Cleveland Plain Dealer agreed to reveal the identity of one of its frequent anonymous commenters.  The anonymous commenter was a judge who posted under the name “lawmiss” and commented on some of the cases in her court.  Judge Shirley Strickland Saffold reacted by suing the newspaper for $50 million.

I will leave the ethics of the judge commenting on her own cases to the legal ethicists, but the suit raises some interesting points.  The suit, filed April 7, 2010, can be seen here.

You can read the ABA Journal article here.  The judge’s comments included:  

“All of these criminals committing crimes against women must stop. None of them should get out of prison, EVER.”

“Rufus Sims (lawyer of Sowell and of a bus driver convicted of vehicular homicide) did a disservice to his client. If only he could shut his Amos and Andy style mouth … This was not a tough case, folks. She should’ve hired a lawyer with the experience to truly handle her needs. Amos and Andy, shuffling around, did not do it.”

The newspaper allegedly voluntarily gave up the judge’s identity after relations between the judge and some of the reporters cooled. 

The lawsuit makes claims for breach of the paper’s privacy policy, fraud, invasion of privacy/false light and a claim for defamation. Trying to enforce the privacy policy would also mean any other terms, such as the disclaimers and limitation of damages in the Site Usage Agreement, might also apply to the claims.  There is also a serious question as to whether the policy ever really promised anonymity.  The pertinent part of the paper’s privacy policy states:

 We may also provide access to our database in order to cooperate with official investigations or legal proceedings, including, for example, in response to subpoenas, search warrants, court orders, or other legal process.

In addition, we reserve the right to use the information we collect about your computer, which may at times be able to identify you, for any lawful business purpose, including without limitation to help diagnose problems with our servers, to gather broad demographic information, and to otherwise administer our Website.While your personally identifying information is protected as outlined above, we reserve the right to use, transfer, sell, and share aggregated, anonymous data about our users as a group for any business purpose, such as analyzing usage trends and seeking compatible advertisers and partners.The limitations of liability and disclaimer of warranties are all contained in the site’s User Agreement.The judge claims some of the posts were done by her daughter.  An interesting issue is whether that means the daughter can be dragged into the case for violating the site’s Usage Agreement which prohibits accessing the site through someone else’s login.  Will there be a tortured Lori Drew Computer Fraud and Abuse Act claim against the daughter for violating the site’s terms? 

So what can be learned from this?  I’m talking to newspapers and not judges because the lesson to judges seems obvious.  The newspaper’s privacy policy is important and there should be no promise or guarantee of anonymity.  Preserving anonymity is a good goal, but stay away of from any contractual promises or guaranties. 

You can read the Newsroom Law Blog about the ethics of this situation from the paper’s side here.  You can read more on the story from the Technology and Marketing Law Blog here.

A Quick Personal Aside:  I have been absent for awhile because of back-to-back jury trials.  In my business litigation practice, I have a jury trial about once every year and a half.  Over the last month, I’ve had two back-to-back with several more scheduled over the next six months.  The first went to verdict and the other settled as we were picking the jury.  People have asked how the economy has impacted our practice and it seems to me that parties are less willing to settle, but more willing to pay more for attorneys to take cases to trial.  

The Supreme Court heard oral argument today about whether it is a crime to sell or possess any depiction of animal cruelty.  Subsection (a) of the law, U.S.C. Part I, Chapter 3, Section 48, states: “Whoever knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain, shall be fined under this title or imprisoned not more than 5 years or both.” The exceptions are “any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.”

It was passed to address “crush videos” which involve women in high heels crushing small animals to satisfy some lurid sexual fetish of certain people.  No commentary needed.   Robert Stevens sold dogfighting videos online, was prosecuted and sentenced to three years–twice the amount of Michael Vick.  The court of appeals overturned the conviction on the grounds the law, on its face, violates the First Amendment.

Animal cruelty is obviously despicable.  The law is so broad, however, that it could cover the videos at the top of the post.  Bull fighting is illegal in the U.S.  Dove hunting is illegal in many states.  Punching camels I am sure is illegal in most states.  Whatever Ithcy and Scratchy are depictions of cruel things happening to animals.

Do we want prosecutors looking at every “depiction” of these activities and making a determination of whether they are being made for commercial gain versus having any “serious religious, political, scientific, journalistic, historical or artistic value?”

Some of the videos above are admittedly ridiculous examples and would never be prosecuted, but would you like to defend whether Conan the Barbarian has serious artistic value?

The commentary from today’s arguments suggests the Supreme Court does not want the government making that call either.

 You can hear my interview with Scott Braddock of Beyond the Headlines on this story here.

The two-year spectacle known as the Texas Legislative session came to an end with the passage of a journalist shield law (already signed by the Governor) and an online harassment law. 

SHIELD LAW

The shield law was passed weeks ago and signed by the governor to become effective immediately.  My prior post, including the text of the bill, is here.  As discussed, it does not appear the shield law will protect a majority of the bloggers because to be a “journalist” entitled to the privilege from being forced to reveal sources, provide notes or pictures, video, etc., or testify, your reporting has to be a “substantial” part of your livelihood. Texas is now one of at least 37 states with a shield law. 

New York is considering extending its shield law to bloggers.  New York’s existing law is very similar to Texas, but there is a proposal to broaden the protections to include “journalist bloggers” with a definition of a “blog” as “a Web site or Web page that contains an online journal containing news, comments and offers hyperlinks provided by the writer.” Some suggest the New York law already covers bloggers, but New York currently defines journalists as those that do it for “gain or livelihood.” Sound familiar? You can read about New York here and here. Should Texas consider a similar amendment in 2011?

It does not appear the privilege would apply to online commenters either.  An Indiana court held the Hoosier State’s law did not protect the identity of people who comment anonymously on the online version of the local newspaper forcing the paper to reveal the comments identity.   Read about here thanks to Richard Koman of ZDNet.

ONLINE HARASSMENT

Through last minute wranglings, a version of the online harassment law was passed by both the Texas house and Senate. Here is a link to the Texas Legislature page on HB 2003 including its final text.

I still have reservations about whether this bill goes too far. It targets two types of activities. The first appears to address the online bullying and MySpace suicide tragedy. The law makes it a crime to use the “name or persona of another person” to create a page or post a message on a social networking site without the content of the other person with the intent to harm someone.

It seems unclear whether it would be a violation of the law to create a completely fictional persona. In the Megan Meier suicide case, the victim’s mother created a completely fake profile of a young man who befriended the victim and then suggested she should kill herself. If an equally malevolent person created a completely fake persona, would this statute criminalize the behavior? The threshold is also low because a crime is committed if there is intent to “harm, defraud, intimidate, or threaten any person.” What harm is enough? Hurt feelings? Does it require physical or financial harm?

I used to comment that this law appears to address bad activities that don’t really happen. Then, I stumbled upon this case thanks to Professor Goldman’s Technology and Marketing Law Blog. It is a sexual assault of a minor case where the victim tried to sue MySpace because the criminal used MySpace to lure the victim. MySpace was dismissed on Section 230 of the Communications Decency Act grounds (more here), but it shows the dangers of social networking sites. Despite another tragic situation, the online harassment law is still not necessary. The criminal is still a criminal and is still guilty of sexual assault with a minor. I am still concerned this law will be abused to criminalize otherwise perfectly legal (although immature) behavior.

The second conduct targeted by the online harassment law criminalizes the sending of an email with the intent to cause the receiver to think the email came from another person because it contains a misleading link or other identifying information. For example, a scammer sends an email that looks like it comes from your bank asking you to go to the website (not actually your bank’s website) to verify account information.

Maybe because I do business and consumer litigation I can understand the need for this bill. Although I think this type of behavior is governed by other statutes, it is helpful to have it clarified in one nice little package. Technically speaking, it could also criminalize the frat house, or law firm, prankster that goes on someone’s email account while the person is out to lunch and sends a fraternity-wide or firm wide joke email. Was there intent to harm? If so, the joke just turned into a Class A Misdemeanor. If anyone is looking to get back at anyone whom may have done that in the past, I recommend they look at this law before they seek revenge.

Shield Law:

 The Texas Shield Law was signed yesterday by the Governor and became law upon his signature.  As mentioned in several prior posts (available here), the law is the result of a compromise between media interests and law enforcement that includes a narrow definition of journalists entitled to the protection.  Specifically, the law defines journalist as: 

“Journalist” means a person, including a parent, subsidiary, division, or affiliate of a person, who for a substantial portion of the person’s livelihood or for substantial financial gain, gathers, compiles, prepares, collects, photographs, records, writes, edits, reports, investigates, processes, or publishes news or information that is disseminated by a news medium or communication service provider

As a result, many bloggers with other full-time professions or bloggers who do not make money blogging may not be entitled to the privilege.  The law was passed to clarify a common law protection for journalists based on the First Amendment that has recently been eroded.  I will be curious to see if the Legislature’s restrictive definition of journalist in the statute is used against a blogger who tries to invoke the common law privilege if they do not meet the statutory definition. 

You can see the text of the law here on the Legislature’s website.  Here is the article on the passage of the law from the Houston Chronicle. 

Online Harassment

The House passed the Online Harassment Bill (HB 2003) and sent it to the Senate.  Below is the text of the bill in its entirety.  I still question the need for this bill and wonder whether it can be abused to criminalize otherwise legitimate, or simply juvenile, but not criminal behavior. 

I would be guilty if I create a persona (not clear whether it has to be an actual other person or a fictional persona) to create a webpage or to post on a commercial social networking site (not a regular email or “message board program” which is not defined) (1) without obtaining the other person’s consent (I guess this assumes the other person is real) and (2) with the intent to harm, defraud, intimidate, or threaten any person.  In other words, if I create a fake profile on Facebook, befriend you and then “harm” you through something you find insulting, then I could be guilty. Immature—sure, criminal (assuming creating a persona or other person applies to fake personas) . . . I hope not.

I would also be guilty if I send an email that “references” a name, domain address, phone number or identifying information belonging to another: (1) without obtaining the other person’s consent; (2) with the intent to cause a recipient to believe the email came from the other person; and (3) with the intent to “harm” any person.  Again, I would presume the reference to another has to be an actual person and would the name, domain address, phone number or identifying information belong to the other person have to be actually correct?  It could be used to go after spammers that send emails that look like they come from your bank, but are merely trying to get your account information.  There is another statute on the books that addresses that—fraud, CAN-SPAM, and probably others.  I’m not as concerned about covering innocuous behavior with this portion of the law, but still don’t feel it is necessary and I am sure a zealous prosecutor could abuse this law too. 

I did not attend the committee hearings on the bill to hear the witnesses testify about the necessity or justification for the bill, but did notice everyone for the bill was from law enforcement and the only attendee listed as against was the ACLU representative.   According to the Bill Analysis, “[O]nline harassment has resulted in suicide, threats of physical and mental abuse, and more, but current Texas law does not provide a means of prosecuting some of the most egregious of these acts.”

This could, of course, be an over-reaction to the tragic, but unique, Megan Meier suicide where a rival’s mother posed as an interested boy on MySpace and then told teenage Megan Meier she should commit suicide, which she did.  Tragic facts often result in bad laws.  The mother, Lori Drew, was prosecuted under existing laws, although that prosecution was not without its own controversy.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1.  Chapter 33, Penal Code, is amended by adding Section 33.07 to read as follows:

Sec. 33.07.  ONLINE HARASSMENT.  (a)  A person commits an offense if the person uses the name or persona of another person to create a web page on or to post one or more messages on a commercial social networking site:

(1)  without obtaining the other person’s consent; and

(2)  with the intent to harm, defraud, intimidate, or threaten any person.

(b)  A person commits an offense if the person sends an electronic mail, instant message, text message, or similar communication that references a name, domain address, phone number, or other item of identifying information belonging to any person:

(1)  without obtaining the other person’s consent;

(2)  with the intent to cause a recipient of the communication to reasonably believe that the other person authorized or transmitted the communication; and

(3)  with the intent to harm or defraud any person.

(c)  An offense under Subsection (a) is a felony of the third degree.  An offense under Subsection (b) is a Class A misdemeanor, except that the offense is a felony of the third degree if the actor commits the offense with the intent to solicit a response by emergency personnel.

(d)  If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section, the other law, or both.

(e)  It is a defense to prosecution under this section that the actor’s conduct consisted solely of action taken as an employee of:

(1)  a commercial social networking site;

(2)  an Internet service provider;

(3)  an interactive computer service, as defined by 47 U.S.C. Section 230;

(4)  a telecommunications provider, as defined by Section 51.002, Utilities Code; or

(5)  a video service provider or cable service provider, as defined by Section 66.002, Utilities Code.

(f)  In this section:

(1)  “Commercial social networking site” means any business, organization, or other similar entity operating a website that permits persons to become registered users for the purpose of establishing personal relationships with other users through direct or real-time communication with other users or the creation of web pages or profiles available to the public or to other users.  The term does not include an electronic mail program or a message board program.

(2)  “Identifying information” has the meaning assigned by Section 32.51.

SECTION 2.  This Act takes effect September 1, 2009.

The Texas Shield Law Bill made it out of committee this week.  HB 670 is being sent to the House without any amendments.  I discussed the bill and provided the bill in its entirety here and here in earlier posts.  Although some protection for journalists is better than none, it appears it will not apply to a majority of bloggers because the definition of journalist requires “substantial financial gain” or for reporting to be a “substantial” part of your livelihood.  The Judiciary and Civil Jurisprudence committee approved of the bill 7 for, 1 against and 3 abstentions. Although it still has a way to go before it becomes law, this year’s version made it farther than the 2007 version that died in committee.

The Online Harassment Bill (HB 2003) is scheduled for a public hearing on March 25, 2009, with the Criminal Jurisprudence Committee. I previously posted about the Online Harassment Bill here. I still question the lack of definitions in the bill for the terms “electronic mail program” and “electronic message board” that may make this bill too broad covering perfectly innocuous and common behavior.