MEMORANDUM
Re: Sally Reporteur’s News Story on the Reform the Electoral College Movement
FACTS
Sally Reporteur recently graduated from a prestigious journalism school. Soon after graduation she found a position as reporter for a local news station. Based on her educational background, and the small staff at the news station, her supervisor gave her a fairly significant amount of discretion to find, investigate and write her own news stories. Like many people of her age group, Sally was quite adept at using information technologies for both her work and in her private life.
One day, while she was chatting with her former classmates on a popular social media network, she learned that a local chapter of the Reform the Electoral College (REC) movement was planning to conduct protests at voting sites around the state that would be open for the upcoming Republican and Democratic primaries. Further investigation via other social networks and social media, revealed that the movement also planned to set up a protest camp in the city’s Main Park. Using this information, she embedded herself with REC member convening at Main Park. While embedded she used a hidden camera and microphone to take video footage of the scene and record conversations that she had with REC group members. In addition, because she cannot be at all places at all times, she also deployed a backpack sized unmanned aerial vehicle, colloquially known as a “drone” in her information gathering. The unmanned aerial vehicle, which Sally purchased from a local hobby store, be can controlled with her smartphone, has a range of two miles and a flight-time of four hours. Sally used the drone to film other areas of REC activity at Main Park, as well as other REC protests at voting sites around the city. Sally, often operated the unmanned aerial vehicle for long periods of time from her apartment which was close to Main Park, to search for people that identified themselves on social media networks she reviewed as wanting to take part in or were at the protests.
Eventually Sally drafted an informative and well made news report on the REC movement and their protests. The story includes: quotes from the social media networking sites where she first leaned about the protest, comments from members of the groups that she spoke with at Main Park, and footage from both the Main Park REC camp as well as the protests conducted at several voting sites. Before broadcasting the story, however, her supervisor asks the news station’s general counsel to review the story and how Sally composed it in order to determine whether or not there are any liability issues that either Sally, the supervisor or the news station itself needs to worry about if Sally’s story is published
ISSUES
Can the news station publish and broadcast a news story investigated and published by one of its reporters where the source of the story was found through social media networks? Is it legal to quote a social media source without first obtaining permission from the source? Does a reporter violate any laws by recording undercover video footage and audio commentary from members of a protest movement without their knowledge or consent, and where the protest was conducted at an in a public place? Are there any legal limits for a reporters use of an unmanned aerial vehicle or “drone” to record footage of a public protest?
DISCUSSION
1. Social Media
The increasing adoption of social media into almost every facet of life, entertainment and business, has made it one of the more essential tools that a reporter can use to gather news and information. The ubiquity of social media, however, is not an excuse to use it without caution or consideration of what liability might be involved.
A. Intellectual Property Issues
As with any use of content that is created or authored by another person, the first consideration of using social media implicates the issue of copyright. Social media content such as a photo, tweet, or blog post have been found to be copyrightable material (Aufderheide, 2014). Indeed, social media content can be deemed an “original work” that give the author’s exclusive rights to “reproduce, adapt, and profit” from their use. Accordingly, the use of such content generally requires authorization from the original author or content creator.
There are, however, a number of exceptions to this rule that are available to journalists. First, if the topic of the story is newsworthy and the use of the social media content provides evidence or proof of the story’s newsworthiness, then its use would be allowed under the doctrine of fair use (Aufderheide, 2014). In addition, if the used content is limited to only a few words or a phrase, then it is more likely that it will not satisfy a key requirement of copyright law, namely that it is a copy of a creative or original to raise issues of liability.
When these standards are applied to Sally’s use of social media, it is unlikely that there will be liability issues in regards to intellectual property, as long as the content that was used is newsworthy and makes use of a limited portion of the original content. In this case the fact that the REC group was protesting an issue that is relevant to the nation and a timely story, seems to satisfy the newsworthy exception. The fact that the story is focused on whether or not the Electoral College system of electing presidents is valid in an election year is newsworthy indeed. As to the other exception, we would need to review the extent of the social media used to determine whether or not it is limited enough.
B. Defamation – Libel
Defamation issues are one of the most common confronted areas of liability faced by the news media. Defamation issues are heightened when dealing with social media because of the fact that information disseminated through social media is often mistaken, false, or are otherwise opinions that lack corroboration or a factual basis (Trager et al., 2104). The key underlying issues for social media and defamation is whether a false statement is made that casts a person or an organization in a negative manner that thereby damages their reputation and reported at true by the media. Under defamation law, the reporting of a false statement is grounds for liability even if the reporter is simply reporting the statement of another person.
In this case, the social media used by Sally in her report must be reviewed to determine whether statements made within them are defamatory. The question is not whether they would be defamatory against the content creator, which is still a possibility; but rather whether the content creator is making a defamatory argument against a third-party, such as a political candidate or entity, that Sally, and the news station, rebroadcasts as being true.
C. Privacy
While the fact the social media is, in essence, the sharing of information to the public may suggest that it is not private; that is not necessarily the case in every circumstance. In the 2013 case Chaney v. Fayette County Public School District, teenager Chelsea Chaney sued her school for invasion of privacy, when a teacher used a photo of her in a class about internet safety that he found on Facebook (Chaney v. Fayette County Public School District, 2013). The court ultimately dismissed her claim, citing the fact that she had administered her account to, in essence, share her information openly to the public. In providing its opinion, the court also provided a framework of analysis that courts can use in determining when liability can occur in similar circumstances (Chaney v. Fayette County Public School District, 2013). Indeed, the court’s opinion suggested that different rules on liability would apply to the sharing of information from an account that is private, limited to only a few friends or otherwise restricts the re-publication or dissemination to third parties without the author’s authorization.
In Sally’s case, it would be best to review how she came about the quotes that she plans to use in the report. Quotes that were made, for example, in private messages made only to her, are most likely going to violate privacy laws if made without authorization. On the other hand, quotes or statements made via “open” accounts as described in Chaney, are more likely to be accepted as being publishable material.
2. Undercover Footage
Investigative reporting has elements that often require undercover reporting and somewhat deceptive practices by the reporters. To be sure, this is a common aspect of contemporary journalism. However, there are limits to the means and methods that a reporter uses in conducting an investigative report.
A. First Amendment and Privacy
According to the 1971 Ninth Circuit Court of Appeals decision in Dietemann v. Time, Inc., a journalist’s First Amendment right to report on stories of public interest does not give them “license to trespass, steal or intrude by electronic means” into a person’s home (Dietemann v. Time, Inc., 1971). However, in the 1995 case Desnick v. American Broadcasting Co., Inc., the Seventh Circuit Court of Appeals held that undercover journalism serves the public interest. According to the Seventh Circuit, the key element in the legal validity of investigative reporting is where it takes place and the extent of the reporting (Desnick v. American Broadcasting Co., Inc., 1995). In Desnick, the reporting occurred in a relatively public place, namely an eye clinic. Moreover, the reporting was focused on information that “was not embarrassingly intimate” details of anyone’s life.
In Sally’s case, the relevant case is Desnick. Sally’s undercover reporting happened in a public forum, namely Main Park, and was entirely focused on getting and understanding member views on the Electoral College and why they felt it should be reformed. As in Desnick, she was reporting from a location that no reasonable person would consider private. Moreover, her reporting was not focused on revealing significantly intimate aspects of people lives. To be sure, she was reporting on issues that the member willing seems to want to express in a public manner.
3. Unmanned Aerial Vehicle Use
While the ownership and use of unmanned aerial vehicles or “drone” has grown substantially over the last decades, there are a number of key regulatory and privacy issues that the media must know and abide by if they plan on using a “drone” for news gathering activities.
A. Regulatory Issues for News-Gathering
The Federal Aviation Administration (FAA) is the main governmental agency tasked with administering the nation’s civil airspace which includes drones. Under the FAA, civil drone use is classified as being either commercial or amateur/hobbyist (FAA, 2015). News and media organization use of drones have been classified by the FAA to be a commercial use. Currently, the FAA has yet to promulgate definitive rules on the use commercial of drones. However, last February the FAA did release its draft rules for the commercial use drones. Those draft rules mainly mirror current FAA regulations on commercial drone use. According to those draft rules, commercial use of drones would be restricted to a vehicle that is less than 55 pounds, flies under 500 feet, is operated in the daylight, within the line of site of the operator, and only over the operator of the drone. (FAA, 2015). A news agency can be exempted from these requirements if it files for an exemption with the FAA.
Consequently, in applying the FAA regulations to Sally’s use of a drone to record activities of the voting site protests and the REC movement’s activity at Main Park; it is clear that the use of the drone was illegal and prohibited. Firstly, neither Sally nor the news agency has applied for an exemption from the FAA regulations. As a result, Sally’s use of the drone would have to comply with FAA regulations. As mentioned those regulations prohibited her from using the drone outside of her line of sight, over herself and during the daylight. Sally’s use violated each of these requirements.
B. Privacy Issues
In addition to the regulatory issues that are implicated in Sally’s use of the drone for news gathering activities. There are also several privacy concerns. It is true that, generally speaking, the law only protects a person’s privacy either where they have a reasonable expectation. It is equally true that a person is prohibited from trespassing on a protected area, such as one’s home, in order to access an otherwise non-private happening (Tragel et al, 2014). Both these concerns are implicated in Sally’s news gathering activities. In other words, how private can a public protest be in regards to newsgathering activities by the media?
In a concurring opinion to the 1970 New York State appellate court case Nader v. General Motors Corp., Judge Breitel argued in his concurrence that “although acts performed in public may not be confidential, at least arguably a right to privacy may nevertheless be invaded” (Nader v. General Motors, 1970). Under the Breitel’s analysis, when monitoring of a public act is “extensive or exhaustive and catalogs acts normally disconnected and anonymous” then a person may have a valid claim that their privacy has been violated (Nader v. General Motors Corp, 1970).
In this case, Sally’s use of the drone to record the protests for hours at a time and to connect faces in the crowd with those she found in the social media might be considered a violation of the protestor’s privacy. Indeed, the fact that the drone was recording video: (1) from a vantage point that was unknown to the protestors, (2) could capture individual member activity within the protests, and (3) provided a comprehensive view of the protestors as a whole, might satisfy Judge Breitel’s definition of an invasion of privacy in a public space. Accordingly, if it was possible to get past the FAA regulatory issues of using the drone, we would most likely be able to only use footage of the most general nature or that provided no connection to the social media of the protesters.
CONCLUSION
In accordance with the law as applied to the facts of Sally’s specific case, it is my recommendation that Sally’s coverage of events at Main Park, be reviewed for compliance with relevant laws, before it is published or broadcast. Any parts that are not in compliance with the law, should be edited out.
First and foremost, Sally’s use of the drone in her news gathering was illegal under current FAA standards. Accordingly, it is also recommended that any footage of events that made use of a drone be edited out and never used in any capacity. This includes in connection with the news station or in Sally’s private use. Failure to do so makes Sally liable to fines and civil penalties from the FAA. In addition, the news station and supervisor might also be subject to liability.
All other footage, including those that make use of social media and undercover reporting, must be carefully screened to see if they comply with relevant laws including but not limited to defamation law, copyright law, and privacy laws. Again, any information that is found to not comply with the laws must be edited out. Only then would we feel safe enough to permit the broadcast and publication of the story.
References
Aufderheide, P. (2014). Journalist, social media, and copyright: Demystifying fair use in the emergent digital environment. Retrieved from http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1217&context=jbtl
Chaney v. Fayette County Public School District, WL 5486829 (2013). Retrieved from http://it-lex.org/wp-content/uploads/2013/10/Chaney.pdf
Desnick v. American Broadcasting Co., Inc., 44 f,3d 1345 (1995). Retrieved from http://caselaw.findlaw.com/us-7th-circuit/1019825.html
Dietemann v. Time, Inc., 449 F.2d 245 (1971). Retrieved from https://webcache.googleusercontent.com/search?q=cache:uJYtz_4cJPgJ:www.bc.edu/bc_org/avp/cas/comm/free_speech/dietemann.html+&cd=3&hl=en&ct=clnk&gl=us
Federal Aviation Administration (FAA). (2015, Feb. 15). Press release – DOT and FAA propose new rules for small unmanned aircraft systems. Retrieved from https://www.faa.gov/news/press_releases/news_story.cfm?newsId=18295
Lozare, N. (2012). Interview: Using content, avoiding trouble with social media. Retrieved from https://www.rcfp.org/browse-media-law-resources/news-media-law/news-media-and-law-summer-2012/interview-using-content-avo
Trager, R., Russomanno, J., Ross, S. D., & Reynolds, A. (2014). The Law of Journalism and Mass Communication, 4th ed. New York, NY: Sage.
