Social media creates concerns over fair use

November 2, 2015

By Stanley Schwartz
Managing Editor | Publishers’ Auxiliary

New technology has brought a host of problems to newspapers, especially when it comes to intellectual property rights, said Rachel Strom, an attorney with Levine Sullivan Koch & Shulz LLP.

There are also issues when it comes to what you can use in articles, such as hacked materials and how far one can go to find sources for a story, such as “friending” someone online or going into chat rooms.


Intellectual Property Rights

“When you see a photo on Instagram, when you see a Facebook photo or Tweet, when are you entitled to use that?” Strom asked. She spoke during the National Newspaper Association’s 129th Convention and Trade Show in St. Charles, MO, Oct. 1.

She told the audience that these are all relatively new areas of the law, and if a newspaper has concerns, it should consult with an attorney on specific issues.

When it comes to use of photos, Strom said, the law is basically the same.

“Things haven’t gone 180 degrees just because of social media.”

In the past, when a newspaper received a photo from an outside source, there may have been some sort of contract to go along with it. With social media, most sites have terms of use information one must consult before taking or using any images or material.

“Courts are struggling with whether they are binding or not,” she said, “but if you find something on Twitter or Facebook, you need to check the terms of use.”

She cautioned the audience to continually check these terms because they change all the time.

Newspapers can use Tweets, she said, but they have to fulfill all of the requirements as stated in the terms of use. But Twitter will also caution users that it only has the rights to some of the material being Tweeted.

“You may need to also get permission from the owner of the Tweet before using it,” she explained.

The rumor that if something is posted online it’s free for the taking is false, Strom said.

“If you write an article and it goes online and someone steals it, that’s copyright infringement,” she said. “The safest course of action is to get permission” before using something from online.

Finding the right person to ask permission can sometimes be problematic. She related a case where a photographer posted dramatic photos from the Haitian earthquake. When The Associated Press asked permission of the poster to use the photos, it was given. But the person asked was not the photographer who shot the photo.

AP lost the suit brought against the company because it did not take down the photos quickly enough after being contacted by the actual photographer.

With copyright infringement, Strom noted, there is no intent requirement, so even if a journalist made a mistake and used someone else’s work without permission he or she would be in the wrong.

“What about if it’s newsworthy information?” Strom asked. “There is no newsworthy exception to copyright.” There can be some fair use exemptions, however. But this is a difficult area of the law, she noted because it’s so context specific.

“It depends on what judge you get, it depends on the exact way you used it; there are no hard and fast rules about fair use,” she added.

She put it into context with an example of someone who has robbed a bank and news outlets go to that person’s Facebook page to get a photo. The problem with that, she said, is the person probably did not take the photo, so the news outlets would have to get permission before using it.

Once you create something, she said, you become the copyright owner, unless you do it in the course of your job, then the company is the copyright owner.

“You don’t actually need to file anything to become the copyright owner,” Strom said. One can sue for more damages if the copyright has been filed, she added.

When looking at fair use, the court will see how the material has been used, how much of it was used and if it was transformed from its original purpose. It will also ask if your use hurt the original market of the person who created the work?


Reporting on Social Media Controversies

There are two main things to consider when a reporter finds something on someone’s social media site, Strom said. “The first is privacy. There are four different types of privacy claims people can bring. But we’re going to focus on the publication of private facts.”

What’s problematic here, she explained, is that privacy law prohibits the publication of truthful information. “That’s what makes this scary.”

Things to consider are: if you’re writing about it, are you disclosing the fact and is the person is identifiable. The two defenses for this are if the fact is already in the public domain and if the information is newsworthy.

Strom continually receives question about what is truly private anymore with people posting the most intimate facts about their private lives online.

“Typically, these areas are private, and the same rules apply,” she said, “even if our courts have not caught up.”

If you get something from a Facebook page, did you get if from a friend who was a friend of that person? If so, that would make it a private fact. If the page was open to everyone, then it’s in the public domain. In a chat room for say 10 people, the information there is most likely private. An open chat room, probably not.

Is the information of public concern? Is it a recent event? Does it involve a prominent figure?

“What you need to think about when reporting on private facts: Is what you’re reporting on embarrassing? Does it concern someone’s personal health or finances? Is the information already generally known? Is it something that’s in a public record?

“You also need to think about defamation. The elements here are it has to be a statement of fact—your opinion cannot be the subject of a defamation claim. It has to be false. That means it’s not substantially true. It has to be harmful of someone’s reputation and about him or her. It has to be made published to other people.

“When you republish something that’s been online, you’re as responsible as the person who said it,” she said. The only thing you’re not responsible for are comments placed on your site by a third party.

So if you find something on Facebook and republish it, you’re as responsible as the person who posted it, she added.


Finding sources online

The first thing you need to know, she explained, is that you do not have a newsworthy defense for breaking the law when newsgathering.

A journalist may not trespass onto another’s property to gather the news. You may not seek out or poses child pornography in your newsgathering. This is not defensible, she said. You have to follow the law when gathering information for a story.

A social media site’s terms of use may outline this area.

This also applies to using information that was hacked from a private server. The Computer Fraud And Abuse Act has not been litigated much, Strom said. If you know that a company has put something out there that it didn’t mean to, it’s a journalists job to report on that, but it could be in violation of the CFAA.

“You want to make sure you’re comfortable with that risk when reporting on it,” she said.

If an someone gives you access to a company server, you do not have the right access it. You can’t hack a site or pay someone to hack a site. But as long as you were not involved in the hack you can use the information provided.

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