Law and Ethics

Journalism

Table of Contents

1. Press Rights2. Press Wrongs3. Understanding Libel4. Invasion of Privacy5. Copyright Law6. Taste and Decency7. The Seven Deadly Sins8. Journalistic Ethics

1. Press Rights

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or press…

The First Amendment to the U.S. Constitution

Privileges and Protection for Sources and Stories

• There are three main privileges that protect you after you write a story.– Fair report– Opinion– Fair comment and criticism

• Fair report privilege – You may report anything said in official governmental proceedings, no matter how slanderous or defamatory, without being sued or censored. You still must be accurate and fair.

Privileges and Protection for Sources and Stories Cont.

• Opinion privilege – Your opinions are protected from libel suits. However, be careful that you are stating an opinion and not a fact. – Calling someone a thief or liar – Fact– Calling someone a knucklehead, or the worst

coach ever – Opinion**Opinions are usually protected.

• Fair comment and criticism – Like the opinion privilege, this allows you to criticize performers, politicians and matters of public interest.– You cannot be sued for saying a movie was

horrible.

Privileges and Protection for Sources and Stories Cont.

• Two main rights and privileges protect your notes and sources.– Freedom from newsroom searches– Shield laws

• Freedom from newsroom searches– The federal Privacy Protection Act

protects you from search and seizures unless officials suspect:

• You are involved in a crime• You are planning to destroy the evidence• Someone is about to be hurt

Privileges and Protection for Sources and Stories Cont.

• Shield Laws– Shield laws protect you from revealing

confidential sources.– Only 31 states have shield laws– There are no federal shield laws

• Bloggers– Bloggers are not necessarily protected

under the same laws that mainstream media reporters are.

– The term bloggers is not well defined.

Journalistic Access

• Freedom of Information and “right to know” issues fall into three main categories.– Courtrooms– Meetings– Records

Open Courtrooms

• The Supreme Court has ruled that criminal trials must remain open to the media except for rare instances when an “overriding right” justifies closure.– This would usually be to protect the

defendant’s fair trial rights.

• Some proceedings may remain closed:– Grand jury investigations– Military tribunals

• In sensitive trials publishing names of jurors, underage defendants, or victims of sex crimes is forbidden.

Open Meetings

• Open meeting laws vary from state to state.

• Generally all local, state or federal boards or commissions that receive revenue from taxes are subject to open meeting laws.

• School boards, city councils, student senates, parking committees are required to open their meeting to the public and notify the public in advance.– Some states are vague about the definition of

“meeting”.– Executive sessions (no voting) may be exempt.

Open Records

• Freedom of Information Act (FOIA) requires all federal agencies to make most of their records available upon request.

• Every state has its own version of FOIA for schools, courts, police, government, etc.

• Exemptions for:– Defense secrets– Medical files– Sensitive law-enforcement data– Etc.

– Some FOIA requests are denied out of confusion over the law.

2. Press Wrongs

• Stories that can get you jailed• Stories that can get you sued• Stories that can get you fired• Stories that can get you angry phone

calls.

Refer to handout for more details

3. Understanding Libel

Libel – Publication of a false statement that deliberately or carelessly damages someone's reputation.

• Be sure of your facts. You must not only believe it, or even know it, but you must be able to prove it.

• The publication of libel as a “rumor” does not make it less a libel.

Libel

• Who can sue?– Any living person, small groups (clubs,

organizations can sue for defamation.– Dead people and the government

cannot sue for defamation.

• Who is sued?– The publication is sued, but you as a

reporter, editors and if you quoted someone, they can be also.

So what exactly is libel?

• Libel must meet all of following.– Must be false.– Must be defamatory.– Must be published.– Plaintiffs must be identifiable.– The defendant must be at fault through

negligence or malice (disregarding the truth).

How do I defend Myself?

• Truth– The plaintiff must prove that what you printed is

false.

• Consent– If someone gives you permission to print it,

they cannot sue you, even later.

• Privilege– If you do not take sides, the fair report privilege

allows you to report on newsworthy statements and public controversies.

• You may always criticize performers.

How can I avoid Libel?

• Verify material.• If someone might be offended, give them

the chance to defend themselves.• Remember public officials often make

careless, unofficial claims. “Alleged” and “reportedly” won’t always save you in court.

• If you ever make a mistake, run a correction or a retraction.

• BUT, never withhold true and damaging information out of fear of libel!

What about famous People?

• Public officials are someone who exercises power or influence in governmental affairs.

• Public figures are a person who has acquired fame, notoriety or been involved in public controversy.

• They must prove that publications acted with actual malice (knowing you’re lying or disregarding the truth) in order to win a libel case.

4. Invasion of Privacy

• When unfair reporting victimizes unwilling people

• Normal people have a right to privacy.

• Four most common ways that privacy is invaded.– Intrusion– Public disclosure of private facts– False light– Appropriation

Intrusion

• If you gather information unethically, without even writing a story, you may be sued.– Trespassing– Secret surveillance– Misrepresentation

Google Street View

“Aaron and Christine Boring sued the Internet search giant last April, alleging that Google "significantly disregarded (their) privacy interests" when Street View cameras captured images of their house beyond signs marked "private road." The couple claimed in their five-count lawsuit that finding their home clearly visible on Google's Street View caused them "mental suffering" and diluted their home value. They sought more than $25,000 in damages and asked that the images of their home be taken off the site and destroyed.”

http://news.cnet.com/8301-1023_3-10166532-93.html

Public Disclosure of Private facts

• Publicizing private details may cause emotional distress if the material is:– Private – Only know by family or friends

and is not of public concern– Intimate – Something personal that

people would not ordinarily want revealed.

– Offensive – Likely to humiliate someone if the information was widely known.

False Light

• This claim arises any time you run a story, headline, photo, or even caption that portrays someone in an inaccurate way.

• If it can be proven that you acted recklessly and that the portrayal was highly offensive to a reasonable person, you will be found guilty.

Sample Case

Pensacola News Journal faces possible insolvency if the Florida Supreme Court upholds an $18 million judgment against it for publishing true facts in a false light case. At issue is the inclusion of true facts about how Joe Anderson, the owner of one of the state’s largest paving companies, killed his wife. The inclusion of those facts in a series on the paving company was viewed as actionable false light — an allegation that a Florida jury accepted.

Anderson admitted that the facts about his killing his wife shortly after he filed for divorce were true but insisted that they were placed in the story in a false way.

http://jonathanturley.org/2008/03/08/newspaper-appeals-18-million-for-publishing-true-story-in-false-light-case/

Ruling

Oct. 24, 2006  ·   An appeals court in Florida on Friday reversed a judgment of $18.28 million against the Pensacola News Journal and its parent company, Gannett Co.

Joe Anderson originally sued the News Journal in 2001 for libel, stating there were inaccuracies in stories the newspaper wrote about him and his road paving company.

But defamation claims carry a two-year statute of limitations and some of the stories cited were older than that. Anderson amended his lawsuit, alleging that the newspaper invaded his privacy with one 1998 story that stated Anderson had shot and killed his wife. Two sentences later, the article stated that law enforcement officials had determined the incident was a hunting accident.

http://www.rcfp.org/newsitems/index.php?i=4586

Appropriation

• Appropriation is the unauthorized use of someone’s name, photos or words to endorse or sell a product or service.

• Usually occurs more in advertising departments than newsrooms.

• To avoid lawsuits, avoid using anyone to sell anything unless they have signed a consent form.

Sample CaseCalifornia’s highest court has revived a long-running dispute over Nestlé USA’s use of a former model’s image on its Taster’s Choice instant coffee label.

On August 17, the California Supreme Court sent the case back to the trial court for a determination on how statute of limitations deadlines should be calculated in defamation lawsuits involving product labels.

Russell Christoff first sued Nestlé USA in 2003 for an alleged act of misappropriation of his likeness that started in 1998. According to Christoff’s complaint, in 1986, Nestlé Canada, an affiliate of Nestlé USA, hired him to pose for a photo shoot. After being photographed gazing at a cup of coffee with an expression conveying he enjoyed the aroma, Christoff was paid $250 and given a contract providing that if the company used his picture on a coffee brick label, it would pay him $2,000 plus an agency commission. It also stated that payment for any other use would require further negotiation. The company eventually used Christoff’s image on the coffee brick label, but did not inform or pay him, he alleged.

While working on a new Taster’s Choice label design in 1997, Nestlé USA came across Christoff’s image on the coffee brick label. Allegedly believing the company had usage rights because the image had been widely used in Canada, the employee never contacted Christoff or investigated the scope of Christoff’s consent.

http://www.martindale.com/advertising-marketing/article_Manatt-Phelps-Phillips-LLP_798478.htm

Ruling

The trial court applied a two-year statute of limitations and instructed the jury to determine whether Christoff knew or should have known earlier that Nestlé had used his image. The jury found that Christoff did not know, and should not reasonably have suspected that his image was being used without his consent, and awarded him more than $15 million in damages.

The Court of Appeal reversed, holding that under the single-publication rule, because Christoff had not filed his lawsuit within two years after Nestlé first “published” the label, his cause of action is barred by the statute of limitations unless, on remand, the trier of fact finds that Nestlé had hindered Christoff’s discovery of the use of his photograph, or that the label had been “republished.”

The California Supreme Court granted review. In its August 17 ruling, it agreed with the Court of Appeal that the judgment must be reversed because the trial court erroneously ruled that the single-publication rule does not apply to claims for appropriation of likeness. But it did not agree with the Court of Appeal that this meant Christoff’s action necessarily is barred by the statute of limitations unless he can show that Nestlé had hindered his discovery of the use of his photograph, or that the label had been “republished.”

5. Copyright Law

• Copyright is a government approved protection of all forms of creative expression: stories, books, images, songs, Web sites, etc.

• Copyright legally establishes who owns the work and who controls its sale and reproduction.

• One hundred years after creation, the work re-enters the public domain (this law is confusing).

• All work is automatically protected by copyright as soon as it appears in concrete form.

• Violations of copyright will get you fired and possibly sued.

Dealing with copyright

• Safest way is to obtain permission to reprint material.

• You are legally allowed “fair use” of copyright material. Which means:– If it is “newsworthy” you may show readers

excerpts or reprinting images.– However, the more you reproduce or excerpt,

the closer you are to violating copyright. One sentence is safe, a paragraph is okay, but several paragraph are trouble.

– If you diminish the original value of the work, you may be violating copyright.

– You still must credit the source of the material.

Images and parodies

• Images fall under the same general rules as text.

• The smaller the image, the safer you are as long as it is for legitimate journalistic purposes.

• Parodies are legal as long as you do not simply copy the original material.

Logos and names

• Logos and names are trademarked. • Errors in trademarks are not as serious as

copyright violations, but if you misword trademarks, expect nasty letters from lawyers.

Instead of: You should say:

Jell-O gelatin dessert

Band-Aid adhesive bandage

Realtor real estate agent

Xerox photocopy

Jacuzzi hot tub

Muzak elevator music

6. Taste and Decency

“Censorship is telling a man he can’t have a steak just because a baby can’t chew it.” Mark Twain

“Newspapers are read at the breakfast and dinner tables. God’s great gift to man is appetite. Put nothing in the paper that will destroy it.” William Rockhill Nelson

Five reasons you may be censored

1. Vulgar Language2. Offensive Topics – Drugs, sex and

rock and roll. Actually rock and roll is fine, just nothing that is “morally questionable”.

3. Conflict of Interest4. Legal/Ethical Issues5. Reporting Flaws – This can be an

excuse that your editors use to avoid running a story.

7. The Seven Deadly Sins

1. Deception – Lying or misrepresenting yourself to obtain information.

2. Conflict of Interest – Accepting gifts or favors from sources or promoting social and political causes.

3. Bias – Slanting a story by manipulating facts to sway a reader’s opinion.

4. Fabrication – Manufacturing quotes or imaginary sources, or writing anything you know to be untrue.

The Seven Deadly Sins Cont.

5. Theft – Obtaining information unlawfully or without a source’s permission.

6. Burning a Source – Deceiving or betraying the confidence of those who provide information for a story.

7. Plagiarism – Passing off someone else’s words or ideas as your own.

8. Journalistic Ethics

• Reporters and editors face tough choices deciding whether to print or withhold damaging facts and quotes, weighing the public’s right to know against the harm individuals may suffer as a result.

• Ask yourself– What purpose does this serve if we print this?– Who gains?– Who loses?– Is it worth it?– What best serves the readers?

• What’s safe or legal or least likely to cause us trouble is not the same as doing what is right.

Preamble

Members of the Society of Professional Journalists believe that public enlightenment is the forerunner of justice and the foundation of democracy. The duty of the journalist is to further those ends by seeking truth and providing a fair and comprehensive account of events and issues. Conscientious journalists from all media and specialties strive to serve the public with thoroughness and honesty. Professional integrity is the cornerstone of a journalist's credibility. Members of the Society share a dedication to ethical behavior and adopt this code to declare the Society's principles and standards of practice.

Seek Truth and Report It

• Journalists should be honest, fair and courageous in gathering, reporting and interpreting information.

Journalists should: • Test the accuracy of information from all sources and exercise

care to avoid inadvertent error. Deliberate distortion is never permissible.

• Diligently seek out subjects of news stories to give them the opportunity to respond to allegations of wrongdoing.Identify sources whenever feasible. The public is entitled to as much information as possible on sources' reliability.

• Always question sources’ motives before promising anonymity. • Clarify conditions attached to any promise made in exchange for

information. Keep promises.• Make certain that headlines, news teases and promotional

material, photos, video, audio, graphics, sound bites and quotations do not misrepresent. They should not oversimplify or highlight incidents out of context.

• Never distort the content of news photos or video. Image enhancement for technical clarity is always permissible. Label montages and photo illustrations.

• Avoid misleading re-enactments or staged news events. If re-enactment is necessary to tell a story, label it.

Seek Truth and Report It Cont.

• Avoid undercover or other surreptitious methods of gathering information except when traditional open methods will not yield information vital to the public. Use of such methods should be explained as part of the story

• Never plagiarize.• Tell the story of the diversity and magnitude of the human

experience boldly, even when it is unpopular to do so.• Examine their own cultural values and avoid imposing those values

on others.• Avoid stereotyping by race, gender, age, religion, ethnicity,

geography, sexual orientation, disability, physical appearance or social status.

• Support the open exchange of views, even views they find repugnant.

• Give voice to the voiceless; official and unofficial sources of information can be equally valid.

• Distinguish between advocacy and news reporting. Analysis and commentary should be labeled and not misrepresent fact or context.

• Distinguish news from advertising and shun hybrids that blur the lines between the two.

• Recognize a special obligation to ensure that the public's business is conducted in the open and that government records are open to inspection.

Minimize Harm• Ethical journalists treat sources, subjects and colleagues as human

beings deserving of respect.

Journalists should:• Show compassion for those who may be affected adversely by

news coverage. Use special sensitivity when dealing with children and inexperienced sources or subjects.

• Be sensitive when seeking or using interviews or photographs of those affected by tragedy or grief.

• Recognize that gathering and reporting information may cause harm or discomfort. Pursuit of the news is not a license for arrogance.

• Recognize that private people have a greater right to control information about themselves than do public officials and others who seek power, influence or attention. Only an overriding public need can justify intrusion into anyone’s privacy.

• Show good taste. Avoid pandering to lurid curiosity.• Be cautious about identifying juvenile suspects or victims of sex

crimes.• Be judicious about naming criminal suspects before the formal

filing of charges.• Balance a criminal suspect’s fair trial rights with the public’s right to

be informed.

Act Independently

• Journalists should be free of obligation to any interest other than the public's right to know.

Journalists should:• Avoid conflicts of interest, real or perceived.• Remain free of associations and activities that may

compromise integrity or damage credibility.• Refuse gifts, favors, fees, free travel and special treatment,

and shun secondary employment, political involvement, public office and service in community organizations if they compromise journalistic integrity.

• Disclose unavoidable conflicts.• Be vigilant and courageous about holding those with power

accountable.• Deny favored treatment to advertisers and special interests

and resist their pressure to influence news coverage.• Be wary of sources offering information for favors or money;

avoid bidding for news.

Be Accountable

• Journalists are accountable to their readers, listeners, viewers and each other.

Journalists should:• Clarify and explain news coverage and

invite dialogue with the public over journalistic conduct.

• Encourage the public to voice grievances against the news media.

• Admit mistakes and correct them promptly.• Expose unethical practices of journalists

and the news media.• Abide by the same high standards to which

they hold others.

Learning Goals

You should know and understand:• the privileges, protections and access guaranteed to

journalists; • how to avoid being jailed, sued, fired or verbally harassed if

your writing or reporting crosses the line; • the ins and outs of libel and slander, so you can avoid

making careless errors that could lead to defamation lawsuits;

• the legal problems that can arise from violating a person's right to privacy;

• how copyright law protects you, and how it prevents you from illegally reprinting the works of others;

• where editors, administrators and readers draw the line when material becomes offensive;

• the ethical pitfalls that can lead to trouble or termination: deception, plagiarism, fabrication, theft, bias, burning sources, and conflict of interest; and

• the ethical standards for reporters' behavior.

Review

PRESS RIGHTS • Press rights fall into two main categories:

– privileges and protections for journalistic activities, and – access to government operations and records.

• Privilege and Protection for Sources and Stories – Privilege: When reporters publish their work, they're protected by:

• fair report privilege, • opinion privilege, and • fair comment and criticism.

– Freedom from newsroom searches – Shield laws

• Journalistic Access: Letting the Sun Shine Behind Closed Doors

– Freedom of information or "the right to know" • open courtrooms • open meetings • open records

– Online legal resources for reporters

PRESS WRONGS • What happens when your big story leads to big trouble?

Review cont.

The Reporter's Guide to Trouble – Contempt of court – Trespassing – Sedition – Libel – Invasion of privacy – Breach of contract – Plagiarism – Fabrication – Lapses in Ethics – Bias – Bad taste – Blunders and bloopers

UNDERSTANDING LIBEL – Publication of a false statement that deliberately or carelessly damages someone's reputation. – It's essential to know the difference between what's acceptable and what's defamatory.

• At a Glance: The Beginning Reporter's Guide to Libel – Who can sue for libel? – Who is it that gets sued? Me, the reporter? – What exactly constitutes libel? – How do I defend myself if someone claims that I libeled him/her? – How can I avoid libel?

Review cont.

INVASION OF PRIVACY • When unfair reporting victimizes unwilling people. When do

ordinary people have a right to be left alone—to stay out of the news, if that's what they want?

• Libel cases challenge journalistic accuracy. Privacy cases challenge journalistic ethics and judgment.

• The Four Most Common Ways to Invade Someone's Privacy – Intrusion

• trespass • secret surveillance • misrepresentation

– False light – Public disclosure of private facts – Appropriation

COPYRIGHT LAW – It prevents thieves and plagiarists from stealing your work and

publishing it somewhere else, and it stops you from stealing the work of others.

• Advice and Suggestions – At a Glance: A Journalist's Guide to Copyright – Respecting Trademarks

Review cont.

TASTE AND DECENCY (AND CENSORHSIP) • At every publication there are restrictions on what

you can say. – Censorship: when these restrictions are imposed from

outside the newsroom (by courts, the military, school administrators, etc).

– "Conforming to community values" or "Meeting our editing standards": when the restrictions originate inside the newsroom (also called "self-censorship").

• You Can't Say That: Five Reasons Why Your Story Might Get Spiked – Vulgar language – Offensive topics – Conflict of interest – Legal/ethical issues – Reporting flaws

Review cont.

THE SEVEN DEADLY SINS • Ethical pitfalls that can lead to trouble-or termination.

– Deception: lying or misrepresenting yourself to obtain information. – Conflict of interest: accepting gifts or favors from sources or promoting social

and political causes. – Bias: slanting a story by manipulating facts to sway readers' opinions. – Fabrication: manufacturing quotes or imaginary sources, or writing anything you

know to be untrue. – Theft: obtaining information unlawfully or without a source's permission. – Burning a source: deceiving or betraying the confidence of those who provide

information for a story. – Plagiarism: passing off someone else's words or ideas as your own.

JOURNALISTIC ETHICS • Reporters and editors must maintain a high standard of professionalism. • The importance of developing a code of ethics: standards and values that

guide your professional conduct.• The Code of Ethics of the Society of Professional Journalists

– Seek truth and report it. – Minimize harm. – Act independently. – Be accountable.