Learning about Online Media Law

As part of renewing my membership with the Media bloggers Association (MBA) I needed to take a fascinating News University course, Online Media Law: The Basics for Bloggers and Other Online Publishers. I’ve paid a lot of attention to online media law over the last year or two, and friends said I should be able to zip right through the course. I probably could have, but I decided to take my time and pay extra close attention.

The course was developed as a joint project by the Media Bloggers Association, the Citizen Media Law Project, the Center for Citizen Media, City University of New York's Graduate School of Journalism, Baruch College, and Media/Professional Insurance. It focuses on three key areas that anyone posting material online should be aware of, defamation, privacy and copyright.

Not only is the course useful in helping people who post material online determine what they should and shouldn’t post, it is also helpful in understanding what other publishers, whether they be major blogs, newspapers, or whatever should be thinking about. It would be great to have a nice summary of the key points of the class. Such a summary would fit very nicely along side the Society of Professional Journalism’s Code of Ethics. If everyone publishing online kept the online media law course notes and the code of ethics in mind, we would see a vast improvement in what is written online.

The course started off talking about defamation; libel and slander. It talked about the differences between public figures and officials, people who are public figures in a limited capacity, such as being an expert in a specific field, and private individuals. It talked about what is required to prove defamation, including when ‘actual malice’ needs to be shown, and the fact that corporations as well as individuals can be defamed and claim damages.

It went on to talk about privacy issues and what sort of material may raise issues, and ended off with a good discussion of copyright, as well as fair use issues. All in all, I probably spent two hours going through the course, and I’m likely to go through it often just to review and brush up on the issues.

There were exercises, including the opportunity to look at actual cases and make your own determination as to whether you thought defamation, invasion of privacy or copyright infringement was taking place. This gets to one of my gripes about the course. If your opinion on the merits of a particular case different from the opinion rendered by a judge hearing that case, they would say that you are incorrect. In some examples, this was even the situation with cases that had been ruled one way but were currently under appeal. The problem is that laws are not black and white and one judge’s opinion is not necessarily the ‘correct’ opinion. Instead of saying correct or incorrect, it would be better to note that you agreed with or disagreed with the judge on the case. What I would love to see is a place where people could discuss the merits of different cases and learn from one another.

With all of this in mind, I received an email from an organization I’ve been following. With permission of the person sending the email, I’m printing excerpts from a public statement. An article, critical of the organization had recently been published. The organization claimed the article was “inaccurate and misleading in the extreme.”

The organization had retained outside counsel to “to conduct a full review of governance, [and] corporate structure” of the organization. A newspaper obtained a copy of that review and presented it in a very different manner.

The counsel for the organization wrote that the article

misrepresents the purpose and context of my June memo as well as my conclusions and recommendations. I was providing confidential advice to a group of organizations that I knew would come under just the sort of politically motivated attacks we have seen this fall. My advice was offered for the organizations to be prepared to defend themselves against any imaginable allegation that might be brought. Accordingly, I flagged areas where I had concerns about their ability to affirmatively and formally prove the absence of legal violations. This is a far cry from stating that any actual violation had occurred or even that it may have.

As I read this, my mind went over aspects of the Online Media Law class. Was there actual malice by the reporter? I hesitate to claim actual malice in most cases, and I’m not sure if there was actual malice in this case. I just don’t have enough information. Was there publication of private facts? Clearly, the legal advice provided by counsel was intended to be confidential. Yet for a case about publication of private facts to be actionable, according to the class, it must be highly offensive to a reasonable person and not of legitimate concern to the public. In this case, I’m not sure either of those criteria were met. It seems as if ‘False Light’ fits even more closely, because it sure sounds like the article placed the organization and perhaps the lawyer in a false light. Is any of this actionable? I’m not a lawyer, and I’m not representing the organization in question or the newspaper, so I’ll reserve judgment.

A little later, I stumbled across Howie Klein’s blog post Gee, I Hope John Shadegg Isn't Planning On Suing Me After He Loses His Congressional Seat In 2 Weeks!. Klein talks about a blog post he had up referring to a book which alleged sexual misconduct by a member of Congress. Like with the example above, people could argue all kinds of different aspects of the case and it would be fascinating to watch an informed discussion of the issues. As I thought about it, many different considerations from the class came to mind.

Anyway you cut it, there is a lot to Online Media Law and I strongly encourage people to take the course. If you’re publishing material online, it is very important. If you’re simply trying to make more sense of what goes on in the media, it is a fascinating and enjoyable course.

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