CHILD FATALITIES

Reporting on child fatalities is difficult.  It presents a collision between the need for a thorough and orderly investigation against intense public concern and, sometimes, outrage.  Medical records may be implicated.  And the death of a child is always devastating.  If the child was under DSS care or supervision, though, that list of challenges also includes the fact that some people may be defensive.  Why did a child — already known to be at risk – die?

Newspapers have played an important role in informing the public about these cases, which in turn has resulted in changes to the law.  Prompted in large part by the work of Rose Post and the Salisbury Post investigating when children had been injured while under DSS supervision, the public now has a right to certain information when a child under DSS care or custody dies or nearly dies.  The statute to read is G.S. § 7B-2902.  https://tinyurl.com/NC-Child-Fatality-Records   It says that when a child dies or almost dies from suspected abuse, neglect, or maltreatment, there must be a written summary of actions taken or services rendered after learning that the child might need protection. The statute specifically calls for the findings and information summary to include

  1. The dates, outcomes, and results of any actions taken or services rendered.
  2. The results of any review by the State Child Fatality Prevention Team, a local child fatality prevention team, a local community child protection team, the Child Fatality Task Force, or any public agency.
  3. Confirmation of the receipt of all reports, accepted or not accepted by the county department of social services, for investigation of suspected child abuse, neglect, or maltreatment, including confirmation that investigations were conducted, the results of the investigations, a description of the conduct of the most recent investigation and the services rendered, and a statement of basis for the department’s decision.

If a person is criminally charged with the death or near-death – or if the person would have been charged but for the fact that the person died – then the findings and information is a public record.  Within five working days of a request for the summary, the public agency must consult with the DA and release the summary unless there’s a reasonable belief that release (1) isn’t authorized, (2) is likely to cause harm to a minor still in the injured child’s household; (3) is likely to jeopardize the State’s ability to prosecute or the defendant’s right to a fair trial; (4) is likely to undermine a criminal investigation or (5) is not authorized by federal law.  If you request and are denied the summary, you have the right to ask a superior court to consider the case immediately.

Running alongside the administrative evaluation of the situation often is a criminal investigation.  Your rights to those records are found in G.S. § 132-1.4 – the criminal records portion of the Public Records Law.  Under that statute, you are entitled to know (1) the time, date, location and nature of any apparent criminal violation; the name, sex, age, address, employment, and alleged violation of anyone arrested, charged or indicted; (3) the circumstances surrounding an arrest, if there has been one, as well as a description of any items seized in connection with the arrest; (4) the contents of any 911 or other emergency call; (5) the contents of law enforcement communications over public airways; and (6) the name, sex, age, and address of a complaining witness.  The name and address of a complaining witness may be withheld temporarily if there is reason to believe that person would be in danger from release of the information.  Otherwise, if law enforcement wants to withhold any of this information, they must apply to the court for a sealing order, at which point a judge has to balance the rights of the public against the rights of the State and the defendant to a proper trial.

If search or arrest warrants are issued, those become public record once they are returned, and returned means returned, regardless of whether they have been executed.  Therefore, a warrant is public once it makes its way back to the clerk of court.  A search warrant must be executed within 48 hours from the time of issuance.  If it’s not executed, it must be marked “not executed” and returned to the clerk “without unnecessary delay.” G.S. § 15A-248.  If it is executed, it must be returned to the clerk — along with an inventory of items seized — “without unnecessary delay.”  G.S. § 15A-257

The law states clearly that returned warrants “may be withheld only when sealed by court order,” but the statute doesn’t give any guidance with regard to when a court should enter such an order.  G.S. § 132-1.4(k).  Though our Court of Appeals has held that the First Amendment doesn’t create a Constitutional right of access to warrants, the Court found that sealing orders are only appropriate “when sealing is ‘essential to preserve higher values and is narrowly tailored to serve that interest.’”  In Re Investigation Into The Death Of Nancy Cooper.  In the Cooper case, no suspect had been charged or even arrested, and the homicide investigation was ongoing. Arguably the absence of any of these factors could give a basis to challenge a sealing order.

One last note about criminal records:  The criminal records statute makes crystal clear that the use of a public record in connection with a criminal investigation has no bearing on its status as a public record.  G.S. § 132-1.4(f). Therefore, if something is a public record, it doesn’t disappear from view simply because it has become evidence in an investigation.  If the City Manager is charged with embezzling funds from City coffers, the financial records of the City are still public records, even if they have been turned over to the SBI, the DA or anyone else.

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POLITICAL ADVERTISING

We’ve been getting lots of questions about political advertising, thus this interim post.  There are seven main things newspapers* need to know/do about political advertising.

  • You cannot charge more than your customary rate for comparable advertising. S. § 163-278.18(a).
  • You cannot favor one candidate over another with your rates. S. § 163-278.18(b).
  • You can give volume or other discounts, so long as they are equally available to all political ad sponsors. S. § 163-278.18(b).
  • You must have a paper trail of payments, so you cannot accept cash payments for political ads. Checks and credit cards are fine.
  • Statements of Media Regarding Political Advertising – G.S. § 163-278.17
    • You must get written authority for each expenditure from each person/organization making or authorizing an expenditure, and those records are deemed “public records” that must be available for inspection during normal business hours. S. § 163-278.17(a).
    • You must keep the authorizations for two years from the election to which they relate. S. § 163-278.35.
    • Failure to comply with these requirements is a Class 2 misdemeanor.

* Note:  FCC license-holders have additional requirements related to maintaining a “public file,” equal time and similar regulations.  For those rules, go to https://www.fcc.gov/media/policy/statutes-and-rules-candidate-appearances-advertising.

With regard to the statutorily required “statement of media outlet receiving expenditures,” the State Board of Elections has created a form that is remarkably detailed.  In fact, it’s overly detailed.  We suggest instead that you collect and retain the bare minimum of information that is required.  You can get a sample form at http://tinyurl.com/SMVT-Political-Ad-Form.

Everything else in the political advertising statutes – the requirement to put disclosures in advertisements, the regulation of how big the disclosures must be, etc. – are legal requirements for the advertiser to worry about, not you.  Just for your background and edification, those basic are included in a Political Advertising Cheat Sheet available at http://tinyurl.com/SMVT-Poli-Ad-Cheat-Sheet.  Under no circumstances should a newspaper be making those decisions or giving advice to political advertisers.

If you have specific questions about political advertising, or if you have other feedback to provide, email us at First@smvt.com.

ACCESS TO PERSONNEL INFORMATION

FFR received an inquiry about the specifics of the statement in last week’s post that “The law is very narrow with regard to what personnel information is public.  However, almost all personnel statutes permit the public agency to release personnel information when doing so is necessary to maintain public confidence in the integrity of the agency.”

There are many personnel statutes scattered throughout the NC code.  With the exception of the hospital employee statute, though, they mostly say the same thing.  (As an example, see the state personnel statutes: http://tinyurl.com/SMVT-State-Personnel.)  Most of the statutes state that “personnel files” of employees are not public records and then provide that basic information about employees is public.  That list generally includes (1) name; (2) age; (3) date of employment; (4) terms of any employment contract; (5) current position; (6) title; (7) current salary; (8) date and amount of each increase or decrease in salary; (3) date and type of each promotion, demotion of other change in position classification; (10) date and reason for any promotion; (11) date and type of any dismissal, suspension or demotion* and (12) current assignment.

*Note:  If an employee is dismissed for disciplinary reasons, “a copy of the written notice of the final decision of the head of the department setting forth the specific acts or omissions that are the basis of the dismissal.”

These statutes are less than straightforward, however, and there are a few things to know.  First, the public records exemption only applies to information initially gathered by the employing agency related to certain employment activity.  Therefore, even information that lands in a personnel file isn’t necessarily exempt from disclosure.  The News & Observer, Whiteville News Reporter and Tabor-Loris Tribune have all litigated and won that issue.

As with most aspects of the Public Records Law, knowing what you are and are not entitled to get is half the ballgame.  If information truly is confidential under the statute, all hope may not be lost.  Most personnel statutes have what we call the “integrity exception.”  This provision allows the release of personnel information when it is “essential to maintaining the integrity of such department or to maintaining the level or quality of services provided by such department.”  This might come into play, for example, if there were concerns about a teacher exhibiting aggressive behavior to students.  The school system could release information to assure parents and the community that the situation had been dealt with properly.

To invoke the “integrity exception,” there must be a written determination that release is necessary, and that memo goes in the personnel file.  In 2004, Chief Justice I. Beverly Lake of the N.C. Supreme Court used it to release information about the head of the Administrative Office of the Courts when the Chief asked for the AOC head to resign.  Justice Lake wrote:

My disclosure of this information is essential to create a complete public record, and to minimize the risk of distortions or exaggerations resulting from incomplete public information … This information will show that the integrity of the AOC has been preserved and protected by my actions in connection with Mr. Kennedy’s resignation … The behavior that called for Mr. Kennedy’s resignation had not yet injured or impaired the operations of the AOC in any way.

Admittedly this procedure is rarely used, but the point is it has been used.  (To read the memo that the Chief prepared, which can serve as a go-by for any public official considering using this provision, go to http://tinyurl.com/SMVT-Lake-Memo.)

Access to personnel information is limited, but requesters need to have a discerning ear.  Is the information even protected personnel information to start with?  If so, is there an exemption that allows you access, or can you persuade the public agency that there is good reason to release the information anyway?

For a listing of the main personnel privacy statutes, go to http://tinyurl.com/SMVT-Personnel-List.

Email us with feedback, questions, or topics that interest you:  First@smvt.com

OPEN COURTS, OPEN MEETINGS & PUBLIC RECORDS

Access To Court Proceedings And Court Records

  • In addition to the cases that recognize a Constitutional right of access to court files and court proceedings, North Carolina’s Constitution provides that all courts shall be open. C. Const. art. I, § 14; N.C. Const. art. I, § 18.  State law also specifies that court records are public records.  G.S. § 7A-109.
  • North Carolina law also provides a statutory mechanism to object when a party seeks to seal a court record or close a hearing in a civil case. S. § 1-72.1.
  • North Carolina has a law that prohibits any court from issuing an order that bans or otherwise restricts publication of open court proceedings. S. § 7A-276.1.

Open Meetings Law

  • Applies to all elected or appointed bodies that have two or more members and exercise virtually any governmental function, including providing advice or oversight. Also applies to committees of public bodies.
  • Applies anytime there is a meeting of a majority of the public body.
  • Requires three things: (1) notice of the meeting; (2) opportunity for the public to attend unless there is a specifically identified, statutory exemption; and (3) minutes of open and closed sessions.
  • Minutes of closed sessions may only be withheld from public view as long as necessary to preserve the confidential issue served by the closed session.

Public Records Law

  • Applies to all three branches of the government.
  • Unless a document is specifically exempted from disclosure by statute, it must be produced upon request.
  • With limited exception (which has been the subject of recent, unresolved litigation), you can only be charged the actual cost to produce a public record. “Staff time” and other types of overhead cannot be charged.
  • You need not say why you want a document.
  • With limited exception, your use of a public record cannot be restricted.
  • The law is very narrow with regard to what personnel information is public. However, almost all personnel statutes permit the public agency to release personnel information when doing so is necessary to maintain public confidence in the integrity of the agency.
  • The law is very narrow with regard to what criminal information is public. That is spelled out in G.S. § 132-1.4.
  • No magic language is required for public records requests.

For a sample public records request, go to http://tinyurl.com/SMVT-Sample-Letter.

Email us with feedback, questions, or topics that interest you:  First@smvt.com

 

THE REPORTER’S PRIVILEGE

Over the next several weeks, I’ll be sharing a series of SMVT QuickSheets* on topics ranging from the NC reporter’s privilege and defamation to things HR and advertising departments should keep in mind.

THE REPORTER’S PRIVILEGE

  • North Carolina has a robust reporter’s privilege. S. § 8-53.11.  The privilege applies regardless of whether information is confidential or nonconfidential, published or not published and applies to all aspects of a news operation.
  • A journalist can waive the privilege by answering any questions posed by a party looking for information. The appropriate response when receiving an inquiry about a story – particularly if the inquiry comes from a lawyer – is that the caller needs to talk with the editor or publisher.  The editor or publisher should “hear out” the caller, receive any question, and then refer the matter to legal counsel.
  • If a journalist gets a subpoena, it is important to act quickly. The Rules of Civil Procedure permit response by Objection – rather than a motion to quash – within the first 10 days after receipt of the subpoena.  After that, a newspaper will have to file a motion to quash, which will be far more time consuming and costly.
  • The privilege can be avoided or overcome if it is waived by the journalist or if the party seeking documents or testimony can prove that the information is essential to the outcome of the case and unavailable from any other source.

*For a printer-friendly version of this, go to http://tinyurl.com/SMVT-Reporters-Privilege.  To read the statute, go to http://tinyurl.com/NC-Rptr-Priv

Please email us with feedback, questions or topics that interest you at First@smvt.com.

COURT ORDERS RELEASE OF POLICE VIDEO

If a picture is worth a thousand words, a video must be worth a million.  Until a year ago, though, the law with regard to law enforcement videos was muddy.  Some departments took the position that video (particularly of officer-involved shootings) was a personnel record.  Some departments released video — sometimes.  Those of us in or representing the media took the position that law enforcement videos offered the best evidence of “the circumstances surrounding an arrest” – a category of information that is public by law.  Questions remained about access to video when there was no arrest, such as when a suspect was shot and killed.

As most of you know, the law related to law enforcement videos – body cam, dash cam, or otherwise – was clarified effective October 1, 2016.  G.S. § 132-1.4A.  http://tinyurl.com/GS-132-1-4A  All those questions are answered.  Law enforcement recordings are neither public records nor personnel records.  Recordings can be shown – but not given – to individuals captured in the video but not to anyone else.  Anyone who wants a copy of the video – witness, victim and media alike – must petition the court for access.  And pay a filing fee.  And probably pay a lawyer.  The new law took all discretion away from law enforcement and put it in the hands of superior court judges.

Last month, Charlotte-Mecklenburg Police shot Rueben Galindo at his home after he had called 911.  http://tinyurl.com/Galindo-Shooting  Doug Miller of the Charlotte Observer and Robert Dawkins of SAFE Coalition NC petitioned the court to direct the release of law enforcement video.  On October 3, Judge Todd Pomeroy did just that and ordered release of the video by October 6.  http://tinyurl.com/Judge-Orders-Release

Judge Pomeroy wrote, “The Recordings, related to an officer-involved shooting that occurred on September 6, 2017, arise from a matter of significant public interest, and release of the Recordings is necessary to advance a compelling public interest.”  The judge ruled that release of the video “would not create a serious threat to the fair, impartial and orderly administration of justice, in light of the availability of extensive voir dire at trial, as well as other alternatives available to a trial court for ensuring a fair and impartial jury in the event any criminal charges are brought.”  He also found that release would not jeopardize the active internal investigation into the shooting.  For these reasons, he ordered the release of the video with only the caveat that the images of minor children should be obscured. (To read the Court’s order, go to http://smvt.com/wp-content/uploads/2017/10/Galindo-Order.pdf.)

Jon Buchan, who represented Miller and The Observer at the hearing, said “We have now had in Mecklenburg County several successful petitions for release under the ‘new’ statute dealing with release of body camera and dash camera videos and other law enforcement recordings, and Doug Miller at The Charlotte Observer has been aggressive and thoughtful about choosing his battles when seeking them.  It seems that the importance to the community of transparency in these police-involved shootings has become apparent to CMPD and to our courts.”

Dash cam and body cam video is different from other law enforcement records, and it should be public.  Videos from dash cams and body cams are little more than a bare naked, honest recording of what has taken place.  They offer an un-edited and un-editorialized account of an event.  None of us has an expectation of privacy as we travel public streets and sidewalks.   In this age, when more than 90% of adults and 97% of people under 44, have cell phones (Pew Research Center’s Internet & American Life Project), we are subject to being watched, recorded or videotaped during almost all of our time in public.  “Invasion of privacy” arguments don’t justify keeping dash cam and body cam video from public view.

More than 30 years ago, Chief Justice Burger wrote, “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.”  Richmond Newspapers Inc. v. Virginia.  Let’s hope that more judges like Judge Pomeroy weigh the merits of releasing law enforcement video and conclude that as a society we are more informed and better citizens when our government is transparent.

Email us with feedback, questions, or topics that interest you:  First@smvt.com

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Stevens, Martin, Vaughn & Tadych, PLLC

Providing legal counsel to traditional and social media and strategic communicators

“Personal Email” as Public Records

Gmail. Yahoo! AOL. Do these sound like official email accounts for the conduct of public business? They can be.

The NC Public Records Law applies to public agencies and public officials/employees. It makes public all documents made or received in connection with the transaction of public business unless there is a specific, statutory provision that exempts them from public disclosure. I highlight “statutory” because public officials must be able to identify by chapter and verse the statute they claim exempts a record from disclosure.  It is not enough to say “It’s confidential,” or “It’s proprietary,” or “It’s sensitive, personal information.”  If there isn’t a law that exempts a document from release, it must be released.

The law makes no reference to how the document is created, transmitted, or stored. A letter to a city councilman about the location of a garbage dump, for example, is equally public whether it is delivered through a .gov email address, AOL, FedEx, or carrier pigeon. Under the law, what matters is the content of the emails. If the email addresses public business and isn’t exempted by some other law, it is a public record. On the other hand, if an email says, “Honey, would you pick up a gallon of milk on your way home?” that probably isn’t a public record even, if it is sent to a .gov email address.

Practical Tip 1:

When you make a request for public records, be clear that you expect to receive all responsive records on the topic that interests you, regardless of what email account was used to send or receive them.  Include a statement like this: “We request all records related to X, whether they reside on governmental or personal computers, and whether they were communicated using governmental or personal email accounts.”

Practical Tip 2:

If you get resistance, you and the public official don’t have to take my word for it that you are entitled to get “personal emails” conducting public business.  Frayda Bluestein, a faculty member with the UNC School of Government, says exactly the same thing I do.  “If an email is made or received in connection with the transaction of public business, it is a public record regardless of whether it is created or stored on a public or a private computer, mobile device, or email system.”  http://tinyurl.com/SOG-Email-As-Public-Record

And if your public official doesn’t trust either me or Frayda, you can quote Judge Howdy Manning.  In a similar situation, ruling on a public records lawsuit against UNC, Judge Manning found that Coach Davis’ personal cell phone bills were public records because they reflected the conduct of public business. Judge Manning wrote, public officials “may not use their personal cell phones to ‘dodge’ or evade the North Caroline Public Records law and may not avoid public scrutiny of their cell phone records by using their personal cell phones to conduct public business.”

The same goes for personal email accounts, personal cell phone texts or personal carrier pigeons.  What matters is the communication, not how it is made.  So don’t overlook your right to receive all records of public business, even those made on personal accounts.

[You can see Judge Manning’s orders in the UNC case here:  http://tinyurl.com/Manning-Orders-UNC]

Email us with feedback, questions, or topics that interest you:  First@smvt.com

 

Dealing with non-employees and non-employee content

We all know that there is a fair amount of red tape that comes with having employees.  You have to supervise and mentor them. They want to get paid. And sometimes they even complain.  So contracting with freelancers might seem like the answer to all your problems, but freelancers bring their own baggage.  Here are some tips to bear in mind when using freelancers.

  1. Conceivably, you are on the hook for intellectual property problems that freelancers lay at your feet.  That means the freelancer must promise – in writing — that they have full rights to anything they provide you for publication.  You can and should require them to indemnify you for any legal liability you have if their work isn’t original.  (Of course, you know the old adage: “that and 50¢ …”  And 50¢ won’t even get you a cup of coffee now.)
  1. Re-use. When you contract with a freelancer, be sure that your agreement gives you rights to use the work not only in the paper tomorrow, but also online, in multimedia formats and basically any format that anyone anywhere ever thinks up.  You don’t want to decide to use that beautiful shot of the mountains on the cover of the publication you launch next year only to discover that you don’t have the rights to do so.  Include language along these lines:  “[The Company] is granted a nonexclusive, assignable, perpetual worldwide permanent license to duplicate, display, distribute or transmit the work in all media, known or hereafter known.”  (If you want to be the only publisher of the work, “nonexclusive” should be changed to “exclusive.”)
  1. Non-use. Reasons ranging from breaking news to dissatisfaction with the work may cause you to pass on publishing a freelancer’s work, so be sure that your contract gives you the right to publish the work, not the obligation to do so.
  1. Ink the deal. Transfers of copyrights or copyright licenses don’t need fancy seals or sealing wax stamped by the king, but they do have to be in writing.  Email most likely is enough, but in no event can you rely on a verbal agreement.
  1. Oddly, when it comes to the libel by a freelancer, your potential responsibility turns on whether the material is posted online or printed with ink on paper.  The federal Communications Decency Act provides protection for “third party” content that is posted on your site, maybe even if you contracted for that content.  The same isn’t true, though, for what gets printed in the hard copy of your paper.  Whether it is news, advertising or letters to the editor, you stand behind any content that you select for publication in the print edition of your paper.  Again, include an indemnity provision by which the freelancer stands by the freelance work.
  1. Governing Law. It may seem a small thing, but include a statement that the agreement is a North Carolina contract, governed by North Carolina law, and that any dispute will be litigated in your home county.
  1. Odds and Ends. It may be obvious, but your agreement should spell out the amount to be paid and any critical deadlines.  Leaving out those basic terms not only could lead to a fight with the freelancer.  It could open the door to a court finding you didn’t ever really have a binding contract.

Obviously there are benefits to using freelance writers and photographers, just be sure you do it wisely.  Keep copies of all agreements, and update those agreements when circumstances change.

Email us with feedback, questions, or topics that interest you:  First@smvt.com

But It’s On The Web! Using Images and Information You Find on the Internet

You are covering the story of a hit-and-run that left two people injured.  You are positive about the name of the suspect, because the police released it, but the only picture you can find of him is a snapshot posted on his Facebook page.  Can you run the photo with your story?  Answering that question requires an understanding of both the copyright law and its exception for “fair use.”

The first fundamental to understand is that facts and ideas cannot be copyrighted.  Copyright law protects the manner of expressing facts.  The creativity.  The statute uses the phrase “original works.”  It doesn’t protect the facts themselves.  The law plainly says, copyright protection does not extend to “any idea, procedure, process, system, method of operation, concept, principle, or discovery ….”  That means you don’t violate a copyright simply by reporting information you gain from other sources.  (After all, isn’t that the essence of every term paper ever written?)  One way to conceptualize the difference might be to consider that recipes (which really are just a list of ingredients and instructions) can’t be copyrighted.  However, a cookbook with artwork and vignettes alongside the recipes can be copyrighted.

The second fundamental to understand is that just because something appears on the web doesn’t mean it is in the public domain.  Think about it.  Most newspapers publish stories online but don’t intend them to be nabbed and read by the local radio station during drive time.  Radio personalities can talk about the news – so can late-night TV hosts – but they cannot read it verbatim.  So as you surf the web, keep in mind that anything you (or your company) didn’t write or photograph or draw, someone else did.  And that someone else owns the copyright for that.  That applies to everything from front-page news articles to photos posted on Instagram to this blog post.

If you want to use someone else’s work, you must do one of two things.  Get permission or determine that your use is a “fair use.”  As for getting permission, be sure you go to the right person.  Generally speaking, companies “own” the work of their employees, so the person who wrote a magazine cover story probably isn’t the owner of its copyright.  You need permission from someone with sufficient authority to speak for the company.

As for fair use, that’s an even trickier issue.  My intellectual property professor at UNC always said, “Anyone who says he can give you a definite answer to a fair use question, definitely doesn’t understand fair use.”  That’s because instead of offering black-and-white rules, the fair use statute, doctrine and cases offer factors for a court to consider and evaluate and weigh.  There are, however, some basics that can inform your decision about whether to use something.

The first distinction to draw is between commercial and non-commercial uses.  Putting someone else’s poem on the inside of a greeting card and selling the card is far more likely to cause copyright problems that using something in news coverage.  (Even though you hope to sell your newspaper and make some money, publishing and selling a newspaper is not a “commercial use” for these purposes.)

The next two factors to consider are the nature of the original work and the impact your use had on the market for the original work.  Opposite ends of the extreme would be a photograph taken by a professional photographer and a fraternity party selfie posted to Facebook.

The final factor a court will consider is how much of the original work is used.  If your book review quotes a few sentences to show how good (or bad) the book is, that’s likely a fair use.  On the other hand, if you use all of a work – whether it is a photograph or a poem —  that weighs against fair use.

News organizations have a leg up on the fair use argument, because “news reporting” is identified in the law, by name, as a potential fair use.  That doesn’t always answer the question, though, as Daniel Morel could tell you.  Mr. Morel is a professional photographer whose photos of the 2010 Haitian earthquake were published without permission by many reputable news outlets. He settled his copyright claims with most of the alleged infringers, but two publishers didn’t settle.  They went to trial, and a jury awarded Mr. Morel $1.22 million in damages for their use of eight photographs.  His status as a professional photographer and the fact that the unauthorized uses supplanted fees he otherwise would have been paid for use of his photos figured significantly in the outcome of his case.

The bottom line is that no one can tell you with certainty whether you can use that Facebook photo for your broadcast or story on the hit-and-run accident.  Using the work of a professional who otherwise gets paid for his work is always risky.  Using all of someone else’s work is risky.  And it’s risky to use someone else’s work in a commercial way – either to promote your product or services or as a product itself.  Only a judge and jury can give you the final answer, and then it’s too late.  But at least understanding the factors that judge and jury will weigh can give you a framework to evaluate the risks.

Email us with feedback, questions, or topics that interest you:  First@smvt.com

Can We Talk? Getting Information from Sources Who May Be Breaking the Law

 

If asked whether a reporter faces liability for asking a source to provide information that legally is secret, most media lawyers will answer:  “No, it’s never illegal to ask questions.  You may not bribe, coerce or hack … but just asking questions isn’t a violation of the law.”

Few things in the law are easy, though, so let me clarify. Take, for example, a potential grand juror willing to talk.  Though you have no obligation not to ask, there are prohibitions on the grand juror speaking out.  So that means you have no legal liability for asking questions of a grand juror, but you still should think about two things.

First, if a potential source asks if he or she could get in trouble for talking with you, you should never answer that question.  You are not a lawyer; you cannot give legal advice.  The State Bar frowns on that kind of thing.  The best answer to a source asking that question is something along the lines of, “I can tell you why I think this is important information for the public to know, and I hope you’ll share with me what you know, but I can’t give you legal advice about anything, including whether you can talk with me.”

The second issue is this:  Depending upon the facts of the case at issue and who has what at stake, you might find yourself on the receiving end of a subpoena if you publish information that legally you are not supposed to have.  If so, your lawyer will look to the NC journalists privilege (G.S. § 8-53.11) to try to keep you off the witness stand.  You have a qualified privilege in all of your journalistic work.

That privilege is conditioned in three ways, though.  First, the privilege doesn’t apply at all if you are an eyewitness to a crime.  A skillful lawyer might argue, for example, that if you received information from someone who broke the obligation to keep grand jury proceedings secret, you were an eyewitness to a crime of leaking information illegally.  Second, a lawyer might argue that even if the privilege applies, it is overcome by proof that you are the only person who knows who “leaked” and that the leaker’s identity is critical to the outcome of a proceeding related to the leak.  Finally, even if you have a privilege, you can waive it by talking.  That’s why we always tell people that if they get a call from someone wanting information from you (as opposed giving information to you), that call should be referred to an editor, who then should call a lawyer.

So, all of this means that you should think carefully before asking a source to break the law by giving you secret information.  Certainly there are times you will evaluate the risks and determine they are low.  You may even decide that the story is important enough to proceed in face of high risk.  But make those decisions with an awareness of the ramifications down the line and talk with editors about those decisions.

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