16 Media Law
By Erin Massey Hiro
Before you can write, you need to know what laws apply to you as a new journalist. These laws also help you as a good citizen. They can help you to understand your rights to information and responsibilities. There are a few crucial laws to remember. Media law is the government legislation that regulates the mass media.
Free Speech and the French Fry Effect
Most people have a general idea of their right to free speech, but they don’t know the details. The First Amendment reads, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The part we are focusing on is “of the press.” That pertains to the right of the press to write what it wants without censorship or punishment. This is vital so that the media can serve as a watchdog of the government and public officials.
Here is my favorite example to demonstrate the importance of the press as watchdog. When I was in high school, I worked at a fast-food restaurant where I cooked French fries. My manager, a burly, middle-aged man with a smoker’s voice, told me never to eat the French fries.
When he was in the kitchen, I was the model employee, cooking French fries efficiently and correctly. But when he left, I slacked off and saved a few fries for myself.
Think of that hungry teenager as someone who works in government. Their job is to use our taxpayer money (the French fries) in an efficient and responsible way. Think of my manager as the press. When he was there, I did my job. When he was not, I was tempted to cheat. If the press is not in the room watching the government – and companies, politicians and others in power – then they might be tempted to cheat as well. When they break the law, it often impacts the public, whether by wasting taxpayer money, stealing jobs, damaging our health, and even jeopardizing our lives.
Media laws discussed in this chapter are all designed to keep the press in the room and serving as watchdogs so that people in power are held accountable.
Defamation
One of the biggest legal issues a new journalist must worry about is defamation. As defined by Jasmine Roberts in the textbook Writing for Strategic Communication Industries, “defamation is intentional damage done to one party’s reputation by another party.” Roberts continues: “Although it is not a crime, it is considered a civil suit in a court of law. Individuals or organizations with particularly high stakes attached to their reputation (for example, celebrities, public figures, renowned educators, or popular businesses) are more inclined to sue for defamation.”
Roberts shares a recent example in defamation cases filed by comedian Bill Cosby. In 2015, Cosby faced allegations of sexual assault from more than 50 women, leading to civil lawsuits and criminal investigations. As a result, Cosby lost several honorary degrees and saw the cancellation of reruns of his popular sitcom from the 1980s and early ’90s, “The Cosby Show.” In response to the hit to his reputation, Cosby sued some of the women for defamation, but the cases were later dismissed.
Now you may think, “But I won’t be covering that kind of news. I just want to write a blog.” Whether you are publishing to the world or one person, these laws still apply. You need to know them to protect yourself in news writing.
Slander and Libel
How do you avoid getting sued for defamation? The first step is to understand the types. There are two kinds: slander and libel.
Slander is the spoken version of defamation, when something is said verbally that harms another party’s reputation. This is typically something that television and radio journalists need to worry about. If you are producing your own podcast, slander applies to you.
If you are focusing on the written word, you need to worry about libel. Libel is the written version of defamation, when something is published that damages a party’s reputation. Libel includes print, online and social media posts.
Roberts outlines a 2011 case in which attorney Rhonda Holmes sued her former client, singer Courtney Love, over a tweet about Holmes’ work ethic. Love was the first person to stand trial for social media defamation, Roberts writes. A jury acquitted Love of all charges. In 2014, Poynter published an article about the case and its implications.
A textbook titled “Tort Law: A 21st-Century Approach” outlines the five different elements of concern if you are sued for libel or slander.
The elements of a libel case are:
- a defamatory statement
- about the plaintiff
- intentionally made (or “published”) to a third party
- without privilege or authorization to do so, that
- caused some sort of financial or other damage
Let’s go into some detail so you know how this applies in your work.
Defamatory Statement
This part is simple. A statement isn’t defamatory as long as it’s true. If you triple checked those facts and your reporting is sound, you won’t have to worry about defamation. If you get the information wrong and that incorrect information defames someone, then they have the first element of a libel suit on their side.
This only pertains to facts. If you write a review bashing a new movie and that hurts the film’s ability to make money, you are safe. It falls into an area called fair comment and criticism. You have the right to critique anything. But even with critiques, any facts included are fair game for libel or slander. So if you write that you didn’t the film while falsely accusing the director of being a convicted felon, that director could sue you for libel.
About the Plaintiff
In some libel or slander cases, the victim is clear. They are named in the news article and the facts about them are incorrect and hurt their reputation.
Even if you did not publish a name, however, you still may have a problem. For example, if you wrote about a student in your chemistry class and reported something false about them, it would be harder to make the case that a single person was defamed. There is no way to know for certain who you are referring to. But if you described that person in a way that the reader could figure out their identity, this second element might still apply. It would all be decided through a court proceeding in which the person suing you for defamation would have to convince the court that a reader could tell they were identified.
Publication
The “Tort Law” book sums this element up nicely: “Remember, defamation vindicates reputational loss, not hurt feelings. … Defamation is not designed to protect against hurt feelings but rather to guard against the loss of standing in the minds of people other than the plaintiff.” If no one knows about the alleged defamation, it can’t harm your reputation. This area concerns whether other people have seen or heard it. The tort book notes that it doesn’t need to be published in a traditional medium (website, book or magazine). Oral communication even applies. Gossip between two people applies. “What matters is that it be an intentional communication to a third party,” according to the book.
Authorization
Sometimes information is expressed in a specific way that exempts it from defamation. One example is judicial proceedings. If you report something said in court and it ends up being false, you can’t successfully be sued for libel. Also, there are exemptions for employment and admissions letters.
Damages
The last element in a defamation case is that the person suing you must prove they lost money because of what you said or wrote. This is a tough to prove because, as the tort book notes, judicial precedent is on the side of journalists: “Harm has been sharply limited in our era due to the Supreme Court’s mandate that constitutional obligations to protect free speech take precedence over reputational interests in a number of scenarios.”
Roberts, the textbook author, writes that many libel suits are unsuccessful and get dismissed because all five elements don’t apply. But she emphasizes that it’s still important for news writers to dedicate themselves to vigilant reporting.
She writes: “Careful information gathering, and rigorous fact checking are vital to avoid defamatory communication. Double-checking quotes and sources help minimize the risk of publishing libelous statements.”
Privacy
Where is the line that separates the rights of journalists from the right to privacy? A good rule of thumb is that a journalist is allowed anywhere the public can go. According to “The American Journalism Handbook” by Dr. Rodrigo Zamith, the Supreme Court has repeatedly ruled that journalists are free to photograph, film or record audio in public spaces, if they are not getting in the way. You don’t have to ask permission to record anyone in public. Note: When it comes to recording children in public, it is a good ethical rule to talk to the parents first.
Sometimes it’s hard to tell what a public space is. State-funded colleges are public by nature, but not all parts of the campus are considered public by law. Most colleges have some public spaces where people can gather and a journalist can freely record. But places like classrooms are off limits, according to the book. In restricted or nonpublic places, a journalist must ask permission to record.
It all centers around a recorded individual’s expectation of privacy. The courts have found that in a place where a “reasonable person” would not expect to be recorded, they may be able to make an intrusion on seclusion claim, Zamith writes.
Laws also prohibit journalists from publishing confidential information such as that relating to health.
Secretly recording people is problematic ethically and legally in some states. Zamith writes that recording laws vary by state.
“In some jurisdictions, journalists may record private exchanges (e.g., a phone interview) only if all people being recorded consent to the recording,” he writes.
That’s the case in California, a so-called “two-party consent” state in which the law requires both parties to know that a conversation is being recorded. But even for states that don’t require permission, journalistic ethics demand it. When you interview a source, you need to tell them up front that you would like to record it, ask for their permission, and then begin recording. Once the recording has begun, you should reiterate to the source that they are being recorded and get their consent on tape.
Copyright and Fair Use
The Supreme Court has repeatedly ruled that copyright laws and free speech are compatible, according to Zamith’s book. Copyright is an intellectual property that protects original works of authorship from being taken by others.
Zamith notes that information is not a copyright violation if it is rewritten. For example, he writes, “it is not possible to copyright the fact that Dr. Zamith gave a lecture about media law on a particular date. However, the exact expression, ‘Dr. Zamith spoke eloquently in a riveting lecture about media law that was met with great acclaim’ may be copyrighted by the author.”
Bottom line: You need to cite and rewrite all information to adhere to copyright laws.
There is a way out of this, but it’s a high bar. The Copyright Act of 1976, according to Zamith, allows journalists to use information verbatim if it passes a four-part test that’s assessed through individual court cases:
- the purpose and character of the use, including if it is for educational purposes
- the nature of the copyrighted work
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole
- the effect of the use upon the potential market for, or value of, the copyrighted work.
For new writers, it’s better to avoid going down this road and write everything yourself.
When it comes to photos, remember never to use a copyrighted image without written permission. You also must be careful with photo credits. If someone requests that you credit an image to “Supreme Leader,” you must follow that exactly or you can be sued for copyright infringement.
Copyright infringement can be expensive. My students once failed to credit an image correctly on our campus newspaper’s website, and we were made aware of that fact with a letter and a $600 bill for its use. We had to pay.
Shield Laws
When you are reporting on a story, sometimes the best information might come from a source who will not or cannot allow their identity to become public. Using an anonymous source isn’t something you should do very often. On rare occasions, it is necessary. If journalists were forced to give up the names of sources, then no one would be willing to share information.
A shield law is one that protects journalists from relinquishing the name of their source to any requesting authority. Shield laws vary by state.
There is no national shield law. Zamith writes that the Supreme Court’s past rulings protect anonymity under the First Amendment. But not always. Journalists can be legally compelled to reveal their anonymous sources.
A landmark ruling came in the Supreme Court case Branzburg v. Hayes (1972), according to Zamith. Paul Branzburg, a reporter for the Louisville Courier-Journal, wrote two stories about drug use in Kentucky. Two of the individuals featured in the article were granted anonymity by Branzburg because they feared prosecution.
After the article was published, Branzburg was subpoenaed to appear before a grand jury and ordered to name his sources. Branzburg refused and was punished for being in contempt of court. In a 5-4 decision, the Supreme Court ruled that the First Amendment’s protection of press freedom does not give journalists special privileges in court.
The consequence of that case is that journalists in the U.S. can be legally forced to reveal their sources. Journalists who decide not to comply can be (and sometimes are) imprisoned for obstruction of justice or contempt of court, Zamith writes.
In California, the outlook is better. A law in the state constitution protects journalists from being held in contempt of court and applies to both confidential sources and unpublished information such as reporter’s notes and unpublished content, according to the First Amendment Coalition’s website.
On and Off the Record
Beyond shield laws, you need to know what you can legally publish from an interview. When you approach a source, identify yourself as a reporter and ask to interview them for a story, you are legally telling them that you plan to use the information they provide in a published work.
On the Record
On the record means that anything a person says to a reporter can be used in a news story. But many sources might not understand the concept, so you should explain it up front and get their name, title and age before the interview begins. Asking for their name off the bat makes it abundantly clear that you are interviewing them for a news story and you will use their name in print.
Some sources will not want to go on the record. When that happens, it’s important for the reporter to ask why. A reporter can dispel a source’s fears and keep them on the record. That’s always the goal. But if “on the record” is impossible, there are three other options:
On Background
News organizations describe on background “as an interview in which information can be published without a name but with some other identifying characteristic that’s negotiated between the reporter and the source. An example would be “a school administrator who declined to be named for fear of losing their job.”
Deep Background
Deep background occurs when information is published without attribution and the source is not identified in any way, according to the website News Literacy Matters. Often the source will be called anonymous.
Off the Record
If your source won’t talk on background or deep background, there is one last option. Off the record means that the source will tell you the information, but legally you can’t use it in any published account. Why bother with this at all? If you know the information, you might find the same information elsewhere.
Remember, with any of these types of interviews, you must adhere to journalism ethics and be transparent with readers. Inform them why you are going off the record without compromising your source. For example, you might write that your source “spoke on condition of anonymity, citing fear of getting arrested.”
Other Media Law Resources
If you need more legal advice as a news writer, free options are available.
First Amendment Coalition has a mission to “protect and promote a free press, freedom of expression and the people’s right to know.” Its website is designed to help journalists know their legal rights and get advice. The site has FAQs and the number of a legal hotline you can call free of charge with any questions.
Another excellent resource for student journalists is the Student Press Law Center. This nonprofit “promotes, supports and defends the First Amendment and free press rights of student journalists and their advisers,” according to its website. Among the most useful pages contains guidelines for student media, covering everything from what policies a college news site might want to include to what students can do if college leaders try to block or limit them.
A third organization that can help journalists is the Washington Coalition for Open Government (WashCOG), which also advocates for the people’s right to access government information. It too has a robust website of resources for journalists, including useful information on public records and how to get them.
Key Takeaways
- As a journalist, you must strive for the truth in every paragraph, sentence and word.
- You need to cite and rewrite all information to adhere to copyright laws.
- There are four legal terms that govern interviews with sources:
- On the record means that anything a person says to a reporter can be used in a news story.
- On background is when information can be published without a name but with some other identifying fact.
- Deep background occurs when information is published without attribution and the source is not identified.
- Off the record means that the source tells you the information, but legally you can’t use it in any published account.
This chapter is adapted from Media Law and Ethics in Broccoli and Chocolate: A Beginner’s Guide to Journalism News Writing by Erin Massey Hiro and is used under a CC-BY 4.0 license. Changes include splitting the original chapter into an ethics and law chapter, as well as editing and rewriting slightly after splitting.
