Attorney speaks on ‘New Rules for the Digital Media Age’ at MPA convention

Note: These are live notes from a workshop at the Michigan Press Association convention. Follow the live Tweet stream at #mpa2012.

Michigan Press Association general counsel Robin Luce Herrmann led a discussion Jan. 28 with her team of attorneys at the 2012 Michigan Press Association convention about latest Michigan media law matters. Topics included “How to protect your Internet assets.”

Media in the digital age

Terms of use and privacy policies
Need rules for people accessing and using your digital products. How will you manage posts that you may allow, copyright issues, editing and removing posts.

Report Abuse buttons: Used to manage content. Allows people to alert us to potential problems on website.

Terms of Use posted on website. This is a contract between media and user. You tell them what they can and can’t do. You want to protect your intellectual property, copyright.

Using social media for newsgathering: Many reporters now look to social media to gather news. We use it to find out what’s going on in the communities and world around us. How can a reporter use that for a news story or can he/she use it and what are the risks. If a Facebook page is public, with no privacy settings, then, according to Facebook’s terms of use, you are allowing everyone to access and use that information and associate it with you. When using social media for newsgathering, keep these things in mind: What does that site say in its terms of use; you don’t want to violate the policy if take something from the site. Facebook’s terms of use are straight forward, but Twitter’s less so. Attorney suggested consult with MPA attorney when you want to use something from social media website. Make sure you’re not violating terms of use. Even so, the site won’t provide “absolute protection” to you if someone complains.

You should treat information collected on social media sites the same way you would if someone came in and handed it to you in person. You verify the person who gave it to you is a reliable source and has the right to give you the information, and whatever they give you, you independently verify.

You have to be careful of confidential sources as there are degrees of protection. Keep in mind that smartphones are good newsgathering tools, but they could harm your confidential source because they can track where you have been, and that info could be subpenaed. If trying to keep a source confidential, you may want to leave your smartphone back in the newsroom and just take notes.

A lot of law enforcement agencies have outdated policies and that can come into play if videoing at a scene of a crime and they see it as interfering with an investigation. Our most concern is to be able to get the story and then educate police on the issue if they overstep bounds and try to restrict us in doing our jobs.

Michigan is a one-party consent state, so we can record phone calls as long as the other party agrees.

Anonymous posters: Some publications are using Facebook to police posters because there are some protections. If you allow anonymous posters, you have to be upfront with your terms of use and whether you would out them if it came down to it or you thought it was newsworthy. Everyone has some degree of protection for its anonymous posters.

In a lot of jurisdictions across the country, there have been some tests developed. We have a First Amendment right to speak anonymously. In order to reveal an anonymous poster, you have to notify the poster, tell that poster. Court has to review the complaint first, before considering whether to reveal anonymous poster. Media’s terms of use may require you to post on the anonymous poster’s behalf.

Intellectual property
Intellectual property involves domain names like your website, Twitter and Facebook accounts, Twitter handle and copyright. Question of copyrights. Who owns the photo and can I use this? If it’s a work-for-hire and copyright is transferred. It’s a question of fair use. Fair use determines whether we can use it. Fair use is whether in advances discussion. A mechanical process involved, forces of nature and a machine can’t be copyrighted.

Stock photos and Google images: Images taken from the web can be risky to use. If you Google, sometimes you’ll pull up database images and you can’t necessarily use those images.

Can’t trump access to public records under copyright. Law enforcement, for instance, can’t copyright photos from crime scene if you get your hands on it and publish it.

Domains and social media handles: Domain names registered on first-come, first-served basis. If you have a trademark, you may be able to take your domain name from someone else if someone else got it first.

Facebook and Twitter have detailed terms of use policies and you can get your name back if someone else owns a social media account using your company’s name. If employee opens social media account, do you have an agreement with employee who created it to get it back if they leave your employment? Non-competition agreements protect newspapers when sales people with connections to customers placing advertising leave your employment. Urged protect property (social media) accounts. Need to specify whether you can use your social media accounts and blogs after the employee leaves employment. If want control, though, the paper could be held responsible for posts.

Posting gone wild: Defamation and Devaluing Your Image
Online comment section: In print, any third-party content can be vetted. However, online comment section, there’s no review and it’s automatically posted. This raises questions of liability, if it’s defamatory content. If you’re a web host, you are generally not responsible. But if you’re a content provider, then you’re responsible.

You have to be careful what you do with respect to what is posted under the Communications Decency Act. It’s OK to remove for relevance, you can edit, but can’t insert defamatory materials; if you remove content and change message and it becomes defamatory.

You can be held liable for republishing third-party content into your own larger posting. A website owner who incorporated a third-party email is an example.

If an employee uses social media to make favorable comments about a service or product of his employer and does not disclose his employee relationship. If you’re a reporter and retweet a story, are you endorsing that information and if doing it under a newspaper account, is the newspaper endorsing? You have to be careful.

Publishers may be liable if give employees tools and encouraged to Tweet. Social media is becoming inseparable with some job functions.

You should have a social media policy.

Workplace issues
Concerns: Employee productivity and blending of work and personal lives
Pluses of social media: Marketing and business development, recruiting tool, knowledge gathering tool and increases communication among employees

When looking to hire people, if you look at their social media you may find out things you aren’t supposed to learn in hiring process, such as health issues, political affiliations, religious background, etc. If you make those attempts and the potential employee finds out they may assume you discriminated against them. Google has a policy not to Google information about a potential employee, because you can’t use that information in making your decision.

Social media at work: Employers allowed to monitor employees’ Internet use at work; no expectation of privacy; company policy may give privacy rights. There are still potential issues an employer could be exposed to information regarding protected classes or the information gathered could be misused.

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