It has always been risky for journalists to offend the powerful, rich and litigious. But until the digital age, American newspapers generally held their own: They rigorously checked facts and employed legal muscle to beat back bullies.
Today they are unprepared to fight, argues a 2016 paper by lawyer and Fortune staff writer Jeff John Roberts. As newspaper budgets have shrunk and some media outlets have moved to clickbait-based business models, in many cases the tenured editors who served as wise counselors and fact-checkers have been sacked. Mistakes are thus more likely.
“More journalists are publishing at a speed and in a fashion that is likely to invite legal trouble. These include reporters who perform ‘churnalism’ in the form of five or more superficial stories a day, or ‘hot takes’ that involve a writer with scant knowledge of a topic publishing a hasty piece of opinion or analysis,” explains Roberts in the paper, “Scribes Without Safety Nets: Teaching Law to Journalists in the Digital Era.”
Journalists, moreover, are unprepared for what Roberts calls “digital dangers.” They are not receiving training for a digital-first world at American journalism schools, Roberts contends in the paper, which he wrote as a Knight-Bagehot fellow at Columbia University: “The result is that it is easier today for news subjects to browbeat reporters with legal threats. A lack of legal resources can also produce a chilling effect in which news outlets steer away from the sort of reporting that could trigger a lawsuit in the first place.”
Indeed, these days there is no guarantee your publication will defend you against a deep-pocketed pugilist. Some freelancer contracts even include indemnity clauses, which place all liability on the writer.
Roberts used his legal training — he passed the bar in New York and Ontario — to review the curricula of nine American journalism schools willing to share their syllabi. The good news: Schools are teaching media law and have infrastructure they could expand. The bad news: He finds much of the material outdated and a “bias towards traditional print or broadcast reporting over online journalism.” Digital reporting is often treated like “an addendum to the core material,” something “faddish or amateur — rather than the digital platforms on which nearly every reporter works today.”
“The current curricula may have to be revised so as to prioritize the legal pitfalls in digital-first jobs,” writes Roberts, who suggests – in the paper and in a follow-up conversation with Journalist’s Resource below – some areas where journalism curricula should be expanded.
Almost everyone today uses free social media platforms like Facebook or email services that are full of their personal information. What many don’t know is that these services can share their information with law enforcement agencies. The situation remains in flux.
Roberts explained to us that when you sign up for a service like Facebook, “you often forfeit your right to privacy because of the third-party doctrine” — whereby the terms of service offer the tech company extensive rights to your content. “Since you gave it to them, they can give your stuff to the cops without telling you.”
Journalists should know which companies resist subpoenas and how to protect online information, he added: “These days, a lot of it turns on encryption. While the law here is also in flux, it’s important for journalists to know about apps like Signal which is built in such a way that the company couldn’t turn over information about its users even if it wanted to.”
Many journalists are active on Twitter, where it can be easy to make an off-hand, ill-tempered remark, or merely retweet one. Journalists need to understand the risks of “twibel” – the phenomenon of people filing defamation claims over tweets.
“Some argue that all tweets are intrinsically opinion and rhetoric, and shouldn’t be subject to libel, but courts don’t agree,” Roberts told us. “In the U.S. there have been a handful of ‘twibel’ settlements. In the UK, where libel law is draconian, a celebrity paid to settle a claim over a retweet.”
The “right to be forgotten”
In 2014 the Court of Justice of the European Union ruled that an individual may request a search engine operator such as Google remove references to that individual. Some free speech advocates argue that the ruling, as currently interpreted, allow the rich and powerful to scrub the internet of any reported misdeeds. This debate is another that Roberts calls important for journalists to follow and understand.
“For a while the BBC reported whenever one of their stories got de-indexed by a right-to-be-forgotten request – this served, in effect, to create a new record of the event and made it visible again in search results,” Roberts said. “This seems like a good idea, especially in cases where the subject of the story is a powerful person using right-to-be-forgotten to cover up misdeeds. Journalists might also consider working with an organization like Internet Archive to prevent their work going down memory holes. Finally, the situation is fluid since there are cases in both Europe and at the Canadian Supreme Court as to whether courts can force results to be purged globally – i.e. a French court forces Google to delete search results not just on Google.fr but on Google.com, too.”
The Computer Fraud and Abuse Act
Roberts recommends journalism schools offer training on the Computer Fraud and Abuse Act (CFAA), a 1984 anti-hacking statute that The New Yorker has called “the worst law in technology” and which the Department of Justice used to prosecute and jail a social media editor at Reuters. Journalists “could fall afoul of it by ‘scraping’ website data or performing other legitimate news-gathering activities,” Roberts warns in his paper.
“The Computer Fraud and Abuse Act is a dated statute that law enforcement and private plaintiffs regularly use (and misuse) to punish a wide variety of computer related activities,” Roberts told us. “The web is full of raw data from corporate and government websites that can serve as the building block for all sorts of data-driven stories. But given the breadth and vague boundaries of the CFAA and its strictures against ‘unauthorized access,’ it is a law data journalists need to know about – especially since it’s a criminal statute.”
We asked Roberts if he came across any favorite media law books in his research. “I wasn’t blown away by any of the journalism textbooks,” he said. “I think they should start integrating material from law professors like Eric Goldman and James Grimmelmann, both of whom have developed internet law casebooks they offer for free or for less than $10.”
Online resources about digital media law:
- The Electronic Frontier Foundation (EFF) publishes regular tips on defending civil liberties and privacy in the digital world.
- For seven years until 2014, the Berkman Center for Internet and the Law at Harvard ran the Digital Media Law Project. It is defunct, for now, but the archives are still available online.
- Check out our 2016 tip sheet on protecting yourself online.
- Roberts spoke with the Nieman Foundation about his study and also authored a post for Medium.
- Roberts’s website.
- A 2016 study by the Knight Foundation (a funder of Journalist’s Resource) found two-thirds of news executives say their industry is weaker in its ability to defend its free speech rights than it was a decade before. Fifty-three percent agreed with the statement that “news organizations are no longer prepared to go to court to preserve First Amendment freedoms.” Of those, 89 percent cited costs.
Keywords: online journalism, liable, defamation, lawyers, big money