Presented by:

Kevin M. Goldberg, Esq. Fletcher, Heald & Hildreth, P.L.C. Phone: 703-812-0462 E-mail: Goldberg@fhhlaw.com Website: http://www.fhhlaw.com Blog: http://www.commlawblog.com Twitter: @Commlawblog

1. Gathering Information
2. Content You Produce

1. Freedom Of Information Act

2. Reporters Privilege

3. Trespass and Taping

Freedom of Information Act (FOIA)

Signed into law on July 4, 1966 by President Lyndon B. Johnson

All records of the agencies of federal government must be accessible to the public unless specifically exempt from this requirement Disclosure, not secrecy, is the dominant objective of the Act Department of Air Force v. Rose (1976)

Agencies must make records available upon request

These records must be made available in the form or format in which they are requested Each agency must make reasonable efforts to maintain records in forms or formats in which they are likely to be requested

Fees
Agency can charge a reasonable fee for search time or copying expenses if sought for commercial use

Costs are limited to document duplication if:

The records are sought for noncommercial use and The request is made by an organization that is:

educational noncommercial scientific news media

Time For Response

1.

Agency has 20 days after a request is made to determine whether it will comply with the request It can extend this period in unusual circumstances

2.

3.

In practice, almost no agency ever meets this deadline

Exemptions
a. National Security Information f. g. h. i. Information that would compromise personal privacy Law Enforcement Records Records of Financial Institutions Oil Well Data

b.
c. d. e.

Internal Agency Rules

Information Exempted by Other Statutes Business or Trade Secrets Inter-agency and intraagency memos or letters

Protection of Sources
Branzburg v. Hayes Majority (4 votes): Requiring journalists to appear and testify before state or federal grand juries does not violate the First Amendment

There is no constitutional journalists confidentiality privilege

Powell Concurrence (1 vote): Advocated a case by case basis to determine whether there was a legitimate need for the source or information or whether there is only a remote or tenuous connection with the investigation

Stewart Dissent (4 votes):

Recognizes the importance of sources in reporting and the role of confidentiality. Fashions a 3 part test which has often been followed later by states and lower federal courts:

3 Part Qualified Privilege Requires

The government must show that there is probable cause that the newsman has information that is clearly relevant to a specific violation of law The government must demonstrate that the information sought is unique cannot be obtained by other means The government must demonstrate a compelling and overriding interest in the information that makes it central to the case

Shield Laws
39 states have shield laws

12 are absolute
The rest are qualified along the lines of the Stewart dissent All but 1 more have judicial decisions formalizing the privilege

Federal law was great until about 2003 and has not been very helpful since, leaving you virtually powerless at the time you make a promise to a source

Intrusion/Trespass
This is conduct such as:
Breaking and entering Surreptitious surveillance Unauthorized physical presence Unauthorized photography

Does NOT require that anything be published

General Rules: Journalists are subject to the same laws as anyone else Dont use cameras or microphones to tape what you couldnt see with your own eyes or hear with your own ears

Intrusion/Trespass (Use Caution)

The lines are often blurred as citizen journalists want to film everything; police will crack down on harder as we have seen in: California (photographer arrested for not getting back into car quick enough when stuck behind an accident) Hawaii (Maui Time publisher arrested on public property) Maryland (non journalist motorcyclist arrested for posting pics from helmet cam to YouTube after being stopped by cop for speeding) New York (reporter arrested for asking questions about murder suicide on public road where there was no tape cutting off access) 3 handy tips Know local laws (as in MD where police stops carried expectation of privacy) Stay on public property but remember what public property is (can expand and contract based on the situation at hand)

Follow police orders and be respectful (but not necessarily in a hurry)

Intrusion/Trespass
(Taping Calls)
It can be very helpful both as a way to get things accurate and to document both your intent and your accuracy later It may also be illegal It is always illegal to intercept or record a phone conversation between other people It may be illegal even if you are a party to the conversation Some states require 2 party consent (Maryland) Others only require one (District of Columbia)

Penalty can be a felony of up to 5 years in prison and $10,000 fine!!!

 Defamation/False Light
Copyright

8 Elements to be Proven by a Plaintiff as a Result of New York Times v. Sullivan Defamatory False Assertion of Fact About the Plaintiff Published With Fault Causing Damage Without a Privilege for the Defendant

Public Figure Plaintiff

Issue of Public Concern Plaintiff must prove falsity by clear and convincing evidence

Private Figure Plaintiff

Plaintiff must prove falsity by preponderance of the evidence

Issue of Private Concern

Plaintiff must prove falsity by clear and convincing evidence

Plaintiff may not have to prove falsity but preponderance of the evidence applies

Public Officials/Public Figures have assumed special roles in society and special prominence in resolution of public questions

These people have greater access to the media to defend themselves

In many cases, they have voluntarily exposed themselves to risk of injury from defamatory falsehood

Private Figure = Negligence

Statements of Fact vs. Statements of Opinion

Is it capable of being answered Yes or No?

Look at: Verifiability of the alleged libel Common usage or meaning of the specific language Full context of statement Broader context of statement (what sort of publication)

A statement is made with actual malice if the writer or speaker has knowledge that it was false or made it with reckless disregard to its truth or falsity This must be proven by clear and convincing evidence Examples:

Purposeful failure to interview a person with opposing viewpoint Using headline despite knowledge that readers might misinterpret it

3 Kinds (all are potentially affected by Correction or Clarification Statutes): Compensatory Compensation for actual money loss or provable monetary injury Usually must be shown before any other damages can be collected

Special Sometimes known as general damages Monetary compensation paid by publishers for injury to reputation, injured feelings, sham, hurt, humiliation, mental anguish

Punitive Meant to punish Often well out of proportion to the amount that is awarded for compensation

SPORTS REPORTERS SEEKING TO HOOK into a teleconference with University of Central Florida football coach George O'Leary got a little more action than they bargained for, according to an article in the Chicago Tribune. When school officials handed out the phone number for reporters to gain access to the teleconference, they were off by one digit. Instead of getting the coach, reporters got another kind of fantasy league. According to a blog by an Orlando Sentinel staffer, the voice on the other line said, "Hi sexy, you've reached the one-on-one fantasy line. The reporter hung up, rechecked the school news release again to make sure he hadn't typed in the wrong number, and dialed again. Instead, he got the same phone sex hotline, "complete with offers" that the blogger wrote, "I can't really post on this blog. The culprit was the school's new director of athletic communications, who accidentally listed one digit incorrectly when he released the teleconference contact information. The September teleconference was postponed until the school could come up with a less personal connection.

Copyright Basics
Determine Ownership Does material qualify for copyright protection (an original work fixed in a tangible medium)? Who owns the material? How long do they own it? What rights do they own?

Avoid Use of Identical or Substantially Similar Material to the Copyrighted Work Try to Purchase or License the Content Key Terms to Remember Statutory Licenses Determine if you are engaged in a Fair Use Determine if any defenses or safe harbors exist

Elements of Copyright Ownership

Original
Independently created by the author Has some minimum degree of creativity

Work of Authorship
Literary, Musical, Dramatic, Pantomime, Choreographic. Pictorial, Graphic, Sculptural, Motion Picture. Audiovisual, Audio Works

Fixed
Sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration

Tangible Medium of Expression

A tangible medium is pretty much anything in which the works discussed above can exist
For our purposes, it is most important to understand that it includes: Radio and Television The Internet

Determining Copyright Ownership

A copyright is owned by the creator (or joint creators), except: Work for Hire (owned by employer): Something created within the scope of ones employment Agreement at the outset of work that it will be a work for hire Federal government works are not copyrightable

Use of Others Material -- Public Domain

Does Not mean it is already being used somewhere, somehow --, the fact that something is on the Internet does not mean it is public It simply means that the Copyright Term has expired This is one reason you need to identify the owner and when the work was created

Rights of a Copyright Owner

Reproduce the copyrighted work

Prepare derivative works

Distribute by sale, transfer, rental, lease, or lending

Perform the work in public

Display the work

Permission/Licensing
Because a copyright is a piece of property (Intellectual Property) it can be bought, sold, or leased/rented/licensed, with the following characteristics: Exclusive or non-exclusive Limited in duration or perpetual

Types of media covered**

Other conditions, such as attribution Statutory and Compulsory Licenses

The Special Problem of Clip Art

(hint: its really a license)

Better Clip Art Options

Derived from Yahoo!

Derived from Wikimedia free content projects

http://www.flickr.com

http://commons.wikimedia.org/wiki/Main_Page

Best Clip Art Option?

Likelihood of Fair Use

Fair Nature of Original Work Noncommercial Noncommercial Transformative Parody First Amendment Protected: News Editorial Criticism Very Short Not Integral Sends Readers or Viewers for More Unfair Commercial

Nature of Use

Commercial

Amount and Substantiality Effect on Market

Longer Amounts Key Elements Satisfies the Reader or Viewer

Remedies
Actual damages Profit lost by copyright holder Profit gained by infringer Statutory damages $750 - $30,000 per work, based upon the judges discretion Can be increased to $150,000 if proven to be willful or reduced to $ 250 if proven to be innocent or willful Injunction Criminal prosecution (punishment may include fines/jail)

Defenses or Safe Harbors

Section 512

Provide notification regarding policies pertaining to repeat copyright infringement offenses Designate an agent for service of proper DMCA Notice and Takedown requests and Counter-Notifications on the website and with the United States Copyright Office Act largely as a passive conduit and follow required procedures when provided with proper notification of a possible copyright infringement

Kevin M. Goldberg, Esq. Fletcher, Heald & Hildreth, P.L.C. Phone: 703-812-0462 E-mail: Goldberg@fhhlaw.com Website: http://www.fhhlaw.com Blog: http://www.commlawblog.com Twitter: @Commlawblog