Twelve Ways to Stay Out of Court

Transcription

National Newspaper
Association
123rd Annual Convention
Twelve Ways to Stay Out of Court:
A Self-Help Legal Primer for
Community Newspapers
September 25, 2009
PRESENTED BY
Robert A. Bertsche, Esq.
Chair, Media and Intellectual Property Practice
Prince, Lobel, Glovsky & Tye LLP
Boston, MA
[email protected]
617-456-8018 in Boston ---------- (617-759-1804 while in Mobile)
© 2009 Robert A. Bertsche/Prince Lobel Glovsky & Tye LLP. These slides were designed
to accompany a live presentation by Prince Lobel , and should not be construed as legal
advice. This work is licensed under a Creative Commons Attribution-NonCommercialNoDerivs 2.5 License.
Or Howard Bronson’s philosophy …
“It’s a newspaper’s duty
to print the news
and make hell!”
NNA 2009: Twelve Ways to Stay Out of Court © 2009 Robert A. Bertsche/Prince Lobel Glovsky & Tye LLP. These
slides were designed to accompany a live presentation by Prince Lobel , and should not be construed as legal advice.
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 2.5 License.
3
The Boston Phoenix
January 9-16, 2003
“Children at risk:
Losing custody to a child molester”
“A July 2002 report for the Baltimore County DSS
determined that Mandel had assaulted his 10-year-old
daughter from an earlier marriage. The report states
that Mandel’s daughter accused him of seven
‘incidents’ of fondling . . .”
4
VERDICT FORM
*
*
*
2. Do you find that the Plaintiff Mandel has established
by a preponderance of the evidence that the below
statements . . . were false?
“Losing custody to a child molester”
YES
________
“A July 2002 report . . . determined that Mandel had
YES
assaulted his 10-year-old daughter . . .”
_________
5
4. What amount of money do you find that the
Plaintiff Mandel has established by a
preponderance of the evidence to be the full
amount necessary to compensate the plaintiff
for the damages you have found to be a
proximate result of the Defendants the
“Phoenix’s” publication?
00
950.000
$_______________
6
The Boston Herald
February 13, 2002
“According to several courthouse
sources, Judge Ernest B. Murphy said
of a teenage rape victim, ’She can’t go
through life as a victim. She’s 14. She
got raped. Tell her to get over it.’”
7
$ 2,100,000.00
8
The Boston Globe
March 23-25, 1995
“Doctor’s Orders Killed Cancer Patient”
*
*
*
“Through an appalling series of errors that would
make The Three Stooges look like brain surgeons,
staff members at this world-renowned, elite
institution gave Betsy and another patient
a massive overdose of a toxic anticancer drug,
causing cardiac damage in both . . . ”
9
$ 2,100,000.00
10
Put
yourself
in their
shoes.
11
1. Put yourself in their shoes.
Would I be upset if someone
wrote that about me?
Would I be upset if
someone did that to me
(my company, my child)?
12
LIBEL
Are you harming someone’s
reputation?
Are you damaging someone’s
business?
Is there someone who will probably
think this story is about them?
INTRUSION
Were you unethical or sneaky in
getting the information?
INVASION OF
PRIVACY
Are you publishing intimate and
embarrassing details that are not
newsworthy?
13
COPYRIGHT
INFRINGEMENT
Are you copying someone else’s
work?
Are you making money off of
COMMERCIAL
someone else’s fame?
APPROPRIATION

Also watch out for:
• Lawyers
• Doctors
• Children
14
2.
Get a
lawyer (and
insurance!)
15
2. Get a lawyer (and insurance!)
Media-savvy
Reasonably priced (we do exist!)
Negotiate a flat monthly retainer for
routine advice
(If not a lawyer, then access a newspaper
association hotline, such as NENPA,
Kentucky Press Ass’n, RCFP, etc.)
16
The Lawyer’s Role
“I don’t want a lawyer to tell me what I cannot
do; I hire him to tell me how to do what I want
to do.”
-- Industrial tycoon J.P. Morgan
17
The Lawyer’s Role
“It is not what a lawyer tells me I may do,
[but] what humanity, reason and justice
tell me I ought to do.”
-- Philosopher Edmund Burke
18
You should call the lawyer if….

Someone threatens legal action

You are publishing unflattering information about a person or
company, particularly if hostility or problems with verification

You think someone will be upset about the article

You used unorthodox means to gather information

You borrowed from someone else’s copyrighted material

Access to the news is blocked

You are subpoenaed

…And if you’re not sure (better safe than sorry)
19
and
Be
3a.
appear)
fair
(sometimes)
20
3a. Be (and appear) fair (sometimes).
Contact
(and quote) the other side.
Provide
facts on both sides.
Avoid
personal attacks.
21
3b.
If not
fair, at
least be
accurate.
22
3b. If not fair, at least be accurate.

Know the risk is higher.

Watch out for sweeping
generalizations.

Don’t imply false facts.

Reveal your sources’ biases.

If an open question, say so.
23
Is Howard Really Finkelstein?
Money Rides On It
Is Robert Howard really Howard Finkelstein?
A lot of investors in Mr. Howard’s Presstek
Inc. would like to know. But not even the
Securities and Exchange Commission can
say for sure. And the lingering mystery has
roiled a hot stock and left the S.E.C. blushing.
24
Howard v. Antilla
(First Circuit Court of Appeals, 2002)
If reporter offers a “balanced account” of a
controversy and “does not imply that she is in
possession of undisclosed facts,” then the
account may be protected opinion even if the
reporter took sides in the debate.
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Be able
to prove
it.
26
3c. Be able to prove it.
Get
(and read) the documents.
Corroborate.
Repeating
Get multiple sources.
libel is no defense.
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Don’t be
ashamed to
tell your
mother.
28
4. Don’t be ashamed to tell
your mother.
Undercover Reporting:
Don’t lie.
Don’t cheat.
Don’t steal.
Don’t falsify documents.
Don’t sneak into places where you have no
right to go.
Don’t use technical means to eavesdrop.
•
•
•
•
•
•
29
4. Don’t be ashamed to tell
your mother.
“The First Amendment has never been construed
to accord newsmen immunity from torts or
crimes committed during the course of
newsgathering. The First Amendment is not a
license to trespass, to steal, or to intrude by
electronic means into the precincts of another’s
home or office.”
-- Dietemann v. Time, Inc. (9th Cir. 1971)
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4.
Don’t
ashamed
tell
4. Don’t
use be
technical
means toto
eavesdrop.
your mother.
Is Secret Tape RecordingConsent
Permitted?
required from:
One Party Only
Connecticut
Maine
Massachusetts
New Hampshire
Rhode Island
Vermont (no statute)
*
All Parties
X
X
X
X
X
X **
*Federal law requires only one-party consent, unless
the interception is to commit a crime or tort.
Beware of
the
confidential
source.
34
5. Beware of the confidential source.
Confidential Sources

“Off the record”?
“Not for attribution”?
“On background”?
“On deep background”?
35
Protect yourself:

Identify yourself as a reporter. Then your source
is “on the record” unless otherwise agreed.
Avoid confidential or unnamed sources when
possible.
Be explicit and unambiguous about your
agreement.
Don’t make any promises of confidentiality you
can’t keep.
Talk to editor re: commitments not to disclose.
36
Ask
yourself:
Can I protect my confidential
source if I am subpoenaed?
–
–
–
–
Subpoenas against reporters are on
the rise.
Many states have shield laws, but level
of protection varies.
Other states rely on a balancing test.
A federal shield law will only apply in
federal court.
37
Cohen v. Cowles Media
(U.S. Supreme Court, 1991)
Your agreement not to disclose the source’s
identity may be enforceable against you in
court.
38
Ask yourself:
If the confidential source won’t
testify, how will I defend my
story at trial?
39
The Boston Globe
March 23-25, 1995
“Doctor’s Orders Killed Cancer Patient”
* * *
“Through an appalling series of errors that would
make The Three Stooges look like brain surgeons,
staff members at this world--renowned, elite
institution gave Betsy and another patient a massive
overdose of a toxic anticancer drug, causing cardiac
damage in both . . . ”
40
2,100,000.00
41
Attribute –
especially to
official
documents
and
proceedings
42
6. Attribute – especially to official documents.

Protects fair and accurate reports of
Fair Report
Privilege
governmental
meetings,
judicial proceedings
and documents, and certain other official
actions and hearings.
Must attribute to the proceeding.
Must accurately capture “gist” or “sting.”
Scope varies widely from state to state.
Even applies to long-ago proceedings
Privilege might (sometimes) be lost if you
acted with knowledge (or reckless disregard)
of falsity.
43
6. Attribute – especially to official documents
and proceedings.
Boston Herald, Feb. 5, 2004
Mobile firm defrauded clients
Mobile (AP) – The former chairman of a Mobilebased real estate company has been indicted by
a federal grand jury for allegedly
misappropriating approximately $9 million in
client funds, the U.S. Attorney said Thursday….
44
and proceedings.
Mobile firm charged with fraud
45
and proceedings.
and proceedings.
Real estate mogul charged with fraud
46
and proceedings.

Understand what you are writing
Get the documents
“I’m just a country reporter…”
Beware of: “According to court
papers,…”
What about just-filed complaints?
47
If it’s
private, be
sure it’s
newsworthy
48
7. If it’s private, be sure it’s newsworthy.
Intimate Private Facts

Sufficiently Intimate
Sufficiently Private
Highly Offensive
True (liability for truthful reports!)
Defense: Newsworthiness; falsity;
consent.
49
7. If it’s private, be sure it’s newsworthy.
More Education Stuff
The students at the College of Alameda will
be surprised to learn their student body
president, Antonia Diaz, is no lady, but is in
fact a man whose real name is Antonio.
Now I realize, that in these times, such a
matter is no big deal, but I suspect his
female classmates in P.E. 97 may wish to
make other showering arrangements.
50
Look at the
big picture
(including
headline!)
51
8. Look at the big picture.
Headlines, pullquotes, captions
“Nightclub brawl
sends 2 to hospital”
“Used car dealer’s
license suspended for
links to crime”
Juxtaposition of photos and text
52
The Salem Evening News
December 17, 1996
“…It wasn’t the first time Steve Salvo [former city
councilor and the mayor’s brother] sought to
build on marginal land. In the mid-1980’s, he
succeeded in getting the city to swap some land
with him, and he developed a home … on what
was thought to be unbuildable wetlands.”
53
Massachusetts Appeals Court
January 29, 2003
“Individually truthful, but inadequately explained,
statements might collectively be found to have
amounted to a ‘half truth … tantamount to a
falsehood.’ ”
54
Did
the
Libel
by omissions
Implication and selective facts “so distort the
truth as to make the entire article false and
defamatory”?
Or is the “tenor of the report … accurate” when
viewed as a whole?
55
Appeals Court, Jan. 29, 2003
“The article provides substantially correct facts
and substantially accurate context regarding
two waterfront land transactions involving a
family with a political history in Salem, leaving
it up to the readers to draw their own
conclusions.”
56
“They hook up online. They
hook up in real life. With
prom season looming, meet
your kids—they might know
more about sex than you
do.”
57
“…false statement of fact…”
“The photographs on these pages are
from an award-winning five-year
project on teen sexuality by New
Hampshire photojournalist Dan
Habib. The individuals pictured are
unrelated to the people or events
described in this story.”
58
Monitor ads,
letters to the
editor – and
blogs!
59
9. Monitor ads, letters to the editors – and blogs!
Your Print
is Liable
For
“Tale Bearers
areNewspaper
as Bad as Tale
Makers”
Statements by Third Parties:
–Quotations
–Advertisements
–Letters to the Editor
–Repetition of a Libel
–Copyright infringements
60
12.
ads,ads,
letters
to the editors
and blogs!–
9. Monitor
Monitor
letters
to the– editors
and blogs!
When reviewing ads, watch out for:
Discriminatory ads
– Employment wanted
•
“Jobs -- Male Interest”; “Jobs -- Female Interest”
– Pittsburgh Press (U.S. Sup. Ct., 1973)
•
•
•
Does not undermine press’s “institutional viability”
Not intended to muzzle press
Press restriction is incidental to a valid economic limit
61
12.
ads,ads,
letters
to the editors
and blogs!–
9. Monitor
Monitor
letters
to the– editors
and blogs!
Real estate ads and fair housing laws
When reviewing ads, watch out for:
– Single-race models a no-no
– Publish “Fair Housing” disclaimer
Political ads
– Disclosure of source of funds
– Advertiser’s responsibility, but
your business interest to point it
out
62
12.
ads,ads,
letters
to the editors
and blogs!–
9. Monitor
Monitor
letters
to the– editors
and blogs!
Steps newspapers can take to avoid advertising liability:
9
9
9
9
Adopt standards and practices
Verify factual accuracy of
potentially defamatory ads
Include warranties and indemnity
in insertion order
Reject ads when appropriate
63
Don’t copy
other
people’s
creative
work.
64
10. Don’t copy other people’s creative work.
You can take facts.
Attribution reduces risk.
Mere linking is okay.
But when you also take the
lede graf …….?
65
When is Copying Permitted?
“Public
Domain”
Written
Permission
“Fair
Use”
66
FAIR USE
The “fair” use of a copyrighted work for
purposes such as criticism, comment,
and news reporting is not an
infringement of copyright.
67
Fair Use of a Copyrighted Work
Courts look at:
Purpose and character of the use
Nature of the copyrighted work
Amount and substantiality of the
portion used
Effect on the potential market for or
value of the work
“Clean hands”
68
Freelancers: Who Owns the Copyright?
Freelance or “work for hire”
If freelance, does paper have the
rights to publish
Agreements cover wide range of
media and protect against future
concerns
69
Don’t
substantially
edit online
postings.
70
11. Don’t substantially edit online postings.
Posting Content Online
Online is a different environment with some greater risks
but also some greater protections:
Risks:

Jurisdiction

Differing laws apply

Freelancers
Protections:

Website must take several steps to obtain
DMCA immunity

Automatically receives CDA immunity
71
14. Don’t substantially edit online postings.
I found it on the internet . . .
So I can copy it -- Right?
72
12a.
Let
complainers
have their
say.
73
15A. Let complainers have their say.

Listen politely and patiently.
Don’t make promises.
Respond soon.
Consider options: letter to
editor, further coverage,
private letter, etc.
74
12B.
Retract
promptly but
cautiously.
75
12a. Retract promptly but cautiously.
Don’t repeat the error.
Involve lawyer if appropriate.
Link (don’t rewrite) for
retractions on website.
The Mobile Press-Register
policy?
76
National Newspaper
Association
123rd Annual Convention
Twelve Ways to Stay Out of Court:
A Self-Help Legal Primer for
Community Newspapers
September 25, 2009
PRESENTED BY
Robert A. Bertsche, Esq.
Chair, Media and Intellectual Property Practice
Prince, Lobel, Glovsky & Tye LLP
Boston, MA
[email protected]
617-456-8018 in Boston ---------- (617-759-1804 while in Mobile)
This work is licensed under a Creative Commons AttributionNonCommercial-NoDerivs 2.5 License.