Legal challenges facing online journalists

law books

This is a guest post by Ed Walker . It is also published on his blog.

Had some media law refresher training this morning. It was tough going back three years and trying to remember specific cases but the best bit of the session were the debates about the challenges now faced by journalism when it comes to online and the law.

The web is moving quickly and with certain acts dating back to to the last century, you won’t find mention of Facebook in the legal statements. First things first, if you’re unsure about media law go and grab a copy of McNae’s Essential Law for Journalists. You won’t regret it.

The three main things we discussed were dealing with breaking news online, and in particular breaking crime news, the use of content from social media sites (particularly images) and commenting on stories by users.

Breaking news online and the dangers

A crime has happened. The Police are on the hunt for two men who have raided the local betting shop. They are armed. You have the basic details and after confirming you’ve got it online. The headline screams out ‘Armed raid at betting shop’ and you’ve got an image of the smashed in door of the betting shop. No arrests have been made. Do you turn the comments on the story? You’ll likely just end up with a load of hearsay that will become obsolete once the Police make arrests but you might also get some extra details, you might stumble upon an eyewitness.

A few hours later and the Police force issued stills of the men they are looking for from the CCTV and give more accurate descriptions. You run these images in full with a big appeal for information from the Police. You create this as a separate article and through your keyword tagging the articles become ‘related’ in your content management system.

You leave the old article in the content management system and overnight the Police name the two men they are looking for and release mugshot images of them. You create a new article and run these images, again this story joins your ‘related stories’ list.

The arrests are made and you’ve still got all the information up on your site. Three articles, all with varying levels of detail and images. Possibly some video of the CCTV and a load of comments from readers. Charges are made and eventually, the trial will start and all this content will be in your archive and might start showing up in the related stories column.

Solution? Have one article and keep that updated. Avoid creating new articles if possible. Keep an eye on pictures/video and remove when no longer relevant. Avoid any compromising photos, just use straight up headshots. Ensure your CMS provides a ‘last updated’ date and timestamp somewhere on the article.

Use of content from social media sites

Facebook and Twitter. A goldmine of information and content, but a legal minefield? There’s not many tests cases out there in terms of using content from social media sites. We had an example of taking a photo from a social networking site of a 17-year-old girl who had died, but the photo showed her drinking alcohol.

Now the dead can’t sue for defamation but the mother would probably not be best pleased to see a smiling photo of her now-dead daughter with a glass of champagne in her hand. Plus, who owns the copyright to the photo?

Solution? We decided we’d run the photo, but probably crop out the alcohol aspect. Or try to find a more suitable photo. In terms of copyright, it’s a tricky one and does seem standard journalist practice now to rip photos from websites despite the copyright resting either with the social network or the user who uploaded the photo.

Commenting on stories

The elephant in the room. Do you post-moderate or pre-moderate? Do you have someone monitoring comments all-hours? Do you let people comment on every story? Do you close comments after a set period of time? Or is it just a free-for-all and it’s the Internet damnit and we can’t control it. Do you let journalists engage in the comments and the debate, or do you tell them to steer clear?

Solution? We couldn’t reach one. But we were sure that media websites benefit massively from having comments on stories – but for court stories the comments should be turned off. We felt more needed to be done to educate people commenting on the idea of ‘fair comment’ and how what they said needed to be based on facts, an honest opinion, without malic and in the public interest. We felt it was important for journalists to be able to respond to comments and engage with the debate as journalism is becoming a two-way process.

Image credit to Eric E Johnson

It was a very interesting morning. The above is just a taster but any of your experiences relating to media law and online journalism would be welcomed in the comments below.

Journalism – a legal definition

It’s carnival of journalism time again and this month Doug Fisher is in the chair. As has become the form over the last few carnivals Doug has suggested a topic:

What changes will need to be made in national and international legal systems to help the digital age, and especially journalism in the digital age, flourish?

A tough question but , as Doug points out, a good one given the multinational membership or the traveling J show.

Of course I’m kicking myself that I didn’t remember the carnival was due before posting two posts about legal issues. Also, thee issue of copyright/fair use has already popped-up in the Carnival.

So my thoughts turned to the mechanical stuff that UK journo students get rammed in to them from day one. The stuff that they have to do and know because that’s what being a journalist is.


The one that really struck me was contempt of court – Editorially tripping yourself up in the run up to a trial or during is one of those things every journo fears. So much emphasis is placed on getting court reporting write in the UK that many still insist that a journalist can do shorthand. No recording devices in UK courts you see. In fact getting your notes wrong can be a big issue for everyone in your organisation.

Without getting deep in to the guts of contempt (my snippet of copyright law is all you get this month), one of the tests for contempt (well strict liability contempt) is Proximity. What chance is there that a juror or anyone else involved with the case would see content that could predjudice the fair outcome of the trial.

In the days of newspapers and even TV this was less of an issue. After all how likely is it that someone sitting on a jury in one part of the country would read a paper from another?  But it doens’t take a law degree to see how the web would make a bit of a mockery of that.

And the implications don’t just stop there. On a global platform, how do you protect yourself when you report what is going on in another part of the world?

Global reach

What do you do if you find that someone from your patch is accused of a crime in, say, Australia? You could still find yourself in contempt. In the US things are a little different thanks to the first amendment but contempt – even with (by UK standards) an open court system – can still be an issue.

Now I’m not saying that the law around contempt should be tightened up and god forbid that we should encourage a worldwide meeting of lawyers to hammer it out – if they can’t do climate change then… well you know what I mean. And, like I said, you don’t need a law degree to work out that this is an issue.  But it is clear that learning all this multimedia stuff is going to be the tip of the iceberg – hyperlocal, local, national or international.  And it’s going to be frustrating.

But if you think it’s any different for bloggers, well we know that’s not the case.

And this is where it get’s problematic. Time was a journalist could find themselves in contempt because they where the only ones who could. They where the only ones who could publish. Now that anyone can publish everyone is, or should be, equally at risk.

Journalism – a legal definition

Contemp, like so many other laws, is a law that was made for another world. But the growing issue is now how any law that used to only impact on journalists is being applied (or not) across the board to those who publish.

And that’s where I think we could look at what happens internationally.

Perhaps we need to look harder at the distinction between citizen and journalist. Individual and profession. Individual and organisation. Not because it means managing an elite club but because it’s actuallydefining of what we do.

If being at risk of the law is one of the risks you take as a journalists. Then it’s clear that many, many more people are journalists now.

We need to see where human rights act stops or first ammendment gives way to case law and ask just how much do these laws define what a journalist is? And do we need to think about changing them to define and protect those who practice it or find themselevs doing those accidental acts of journalism.

An international delcalration of journalistic rights and a recognised definition of those that can claim it’s protection.

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Time to get your head round Fair use

Copyright symbol
Image via Wikipedia

Yesterday I commented on a post from Bill Thompson about suggested changes to European legislation that ‘may’ open the door to the music industry having the power to ban people from the web. I reflected that the journalism industry had yet another lesson in how not to behave, writ large, from the music industry.  It also gave me pause to reflect on the way the way journalists are having to get to grips with legislation and legal matters once ‘referred up’ to subs, editors and lawyers.

A good example of this is copyright or, to be more accurate, a part of the copyright legislation Fair dealing.

Bills post landed in my reader at about the same time that Mark Comerford Twittered me about a new set of guidelines The Center for Social Media has put together: Code of Best Practices in Fair Use for Online Video

This document is a code of best practices that helps creators, online providers, copyright holders, and others interested in the making of online video interpret the copyright doctrine of fair use. Fair use is the right to use copyrighted material without permission or payment under some circumstances.

It’s worth a visit for the clear way it sets things out and though the guide is not a binding set of rules it does a pretty good job of outlining what you can and can’t use when you are reporting and how. There is an especially nice FAQ style q&a at the end. A nice resource

It’s a timely document.  Over the last few months I have seen a number of conversations on newsgroups and had conversations whilst training about the bounds of fair use. In particular when it comes to using music on web video.

The general feeling seems to be that you can use a chunk of copyright music over the top of you movies because you are ‘reporting’.  As long as you don’t use more than 30 seconds you are safe under fair dealing.

Of course that isn’t true.

Fair dealing gives allowances for those involved in (using the UK lingo) Criticism, review and news reporting. Traditionally you could say that it’s had most use as the thing that allows use to publish snippets of books for review.  You can use a ‘chunk’ of content to make a point. Whether you fit within the bounds of fair use is dependent on how much you use and how you use it.

It doesn’t give you a time limited carte blanche to use any music. The only ‘kind of’ exception in the ‘incidental’ inclusion of music – sound playing in the background or someone leaving Coronation Street on when you interview them. As long as you don’t make a feature of it.

So go and have a read of the CSM guide but if you are in the UK don’t take it as read.

This side of the pond

Fair use and copyright is a different (in places) kettle of fish in the UK. The copyright people have a quick guide to fair use if you want an overview. But the real meat of it is in the copyright legislation.

Here is the UK part of copyright law that covers fair dealing as far as it directly impacts on journalists. (with the recent changes)

Criticism, review and news reporting
(1)Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgment and provided that the work has been made available to the public.

(1A) For the purposes of subsection (1) a work has been made available to the public if it has been made available by any means, including –

(a) the issue of copies to the public;
(b) making the work available by means of an electronic retrieval system;
(c) the rental or lending of copies of the work to the public;
(d) the performance, exhibition, playing or showing of the work in public;
(e) the communication to the public of the work,

but in determining generally for the purposes of that subsection whether a work has been made available to the public no account shall be taken of any unauthorised act.
(2)Fair dealing with a performance or recording for the purpose of criticism or review, of that or another performance or recording, or of a work, does not infringe any of the rights conferred by Part 2 provided that the performance or recording has been made available to the public.
Fair dealing with a performance or recording for the purpose of reporting current events does not infringe any of the rights conferred by Part 2.
(3)No acknowledgement is required in connection with the reporting of current events by means of a sound recording, film, or broadcast where this would be impossible for reasons of practicality or otherwise.

Incidental inclusion of copyright material

(1)Copyright in a work is not infringed by its incidental inclusion in an artistic work, sound recording, film, broadcast or cable programme.

(2)Nor is the copyright infringed by the issue to the public of copies, or the playing, showing, broadcasting or inclusion in a cable programme service, of anything whose making was, by virtue of subsection (1), not an infringement of the copyright

(3)A musical work, words spoken or sung with music, or so much of a sound recording, broadcast or cable programme as includes a musical work or such words, shall not be regarded as incidentally included in another work if it is deliberately included.

Weighty isnt it. But not that opaque. But there is an excpetion.

Fair play on photos

The terms of fair use, as far as I understand it, don’t include photographs. Something that’s worth considering when you are thinking about image slideshows or when you are looking to lift a picture from social networks. Forget fair use. Forget public interest (unless you really are in a mood to refer it up).

For more on that particular issue you might want to look at a post at the BBC from Steve Herrmann thinking about the use of images from facebook. Then have a read through the comments. As Andrew Rogers commented on his blog. A bit of an eye opener.

So it seems that there is a lot more to law than just contempt and libel. Perhaps that hour you set aside to teach yourself soundslides or play with Twitter might be better spent having a chat to your Photographers, your subs and lawyers.

Have you had experience of this? Need to put me straight on the law? Please leave a comment.

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Turning the tide…more lessons from the music industry

The law. It’s a legal minefield isnt it? (always start with a bad pun)

As a journalist time was you only had to worry about libel and contempt and anything else got referred up. Now, the law for journalists, is as much about access to information.

And that’s not just about getting access to information. It’s also about controlling how your information – your identity and content is protected online. But more about legal issues tommorrow.

Bill Thompson has been mulling over the issue of control in a post about the proposed changes to communications and media legislation being suggested by the EU. Some see it as a charter to protect the big Media companies at the expense of freedom of information. Bill isn’t convinced the legislation is anti-freedom.

In fact he goes a step further, highlighting what he sees as a positive step to prevent big Media companies making good on their plans to cut people off from the net if they are repeatedly caught downloading copyright music.

That’s what the music industry wants at the moment – if you dare to damage their economic viability then you have to be excluded from everything the internet has to offer.

Bill has some sensible advice to those who might suffer at the hands of those who wield the heavy club when it comes to protecting their interest.

Perhaps the 21st Century industrial giants might like to have a quiet word with the record industry and tell them to give up trying to stop the digital tide coming up the beach.

Cnut knew it was impossible but had to show his sycophantic advisors that the sea was no respecter of monarchy.

But at an industry level, despite warnings that lessons from the music industry give us, the media often resort to these Cnut tactics. The MSM’s use and threat of legal recourse to protect their interests has been seen by some as fighting fire-with-fire.  But it seems to be behavior that, if it contnues, is sure to kill the changes the indusrty needs to make.

That’s not to say the journalism indusrty should advocate piracy. No. The point here is that the big-gun politics will eventually come back to hurt them. Take the recent AP bloggers debacle as an example.

We know that the industry is attempting to position itself in the middle of the share economy. It relies on the community around it for advertising, for support and, increasingly for content and that means giving ground and changing our behaviour. And in that respect we still have a way to go to really open things up.

It’s a big market out their. Some of it is exactly where the industry should be. Some of it is not. Some of it is where we used to be but aren’t any more. We should go gracefully.

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