Media Ethics and Law Rutgers Kremen

New Jersey's Cyber-harassment Law

"A person commits the crime of cyber-harassment if, while making a communication in an online capacity via any electronic device or through a social networking site and with the purpose to harass another, the person: 1. threatens to inflict injury or physical harm to any person or the property of any person; 2. knowingly sends, posts, comments, requests, suggests, or proposes any lewd, indecent, or obscene material to or about a person with the intent to emotionally harm a reasonable person or place a reasonable person in fear of physical or emotional harm to his person; or 3. threatens to commit any crime against the person or the person's property."

Indictable crimes

(known as felonies in other states): A grand jury reviews the case to see if there's enough evidence to support a case. If so, the grand jury makes a written statement with the formal charges, which is called an indictment. 1st - 4th degree --> Most to least serious Examples: murder, cyberbullying, sexual assault.

Types of criminal cases

-Indictable crimes -Disorderly person crimes -Petty disorderly person crimes

examples of fair use

-Playing movie clips in a classroom; -Using the gist of a TV show for a parody; -Copying a small part of a large textbook and distributing copies to students; -Including lyrics in an album review.

Fairness Doctrine

-Required broadcasters to air controversial content of public interest -Required broadcasters to air all sides of the issue, It did not require broadcasters give each side equal time, however. All sides simply need to be covered.

Public officials, public figures and celebrities must also prove:

-That the statement was false; - That the statement was made with actual malice.

Elements of a successful defamation suit

-The defamatory statement was published or broadcast to a third party; -The defamatory statement harmed the plaintiff's reputation and be false; -The defamatory statement was clearly about the plaintiff. -The defamatory statement was made, at a minimum, with negligence.

Who is not covered under Shield Law?

1) Posters on Internet Messages Boards Too Much Media v. Hale, (N.J. 2011) Hale, a blogger, was sued by a company for defamation. The company also wanted to know the identity of her sources. The court decided not to grant protection under the N.J. shield law because her posts were to an Internet message board, which was deemed a forum for conversation - not news. 2) PR Companies Re Napp Technologies, Inc. Litigation, (N.J. Super. 2000) A PR firm, Re Napp, sought protection under the shield law. The court found that it was a spokesperson for news, but not part of the news media.

In criminal cases, to pierce the shield you must ...

1. The information sought must be relevant, material, and necessary to the defense; and 2. The information cannot be obtained from less intrusive means.

Adding a Copyright notice:

1.Lets folks know the work is protected by copyright, which might scare away potential infringers; 2.Prevents someone from claiming they were an "innocent infringer," which could help thwart your attempts to get the money you're owed; 3.Identifies the copyright owner so that it is easier for people who want to use your work to ask for permission. 4.Requires little effort. You don't have to file anything to use the copyright notice. statue of limitations for a copyright case is 3 years

Statue of limitations

A defamation charge must be filed within one year of the first publication of the statement. However, this rule is not absolute. If the statement is published to a markedly different audience or a subsequently published statement is significantly changed, the clock starts ticking all over again.

Open Public Records Act (OPRA)

All records should be public and accessible, except for those deemed confidential. This includes: •Information subject to attorney client privilege •Memos, correspondence, notes or reports generated by a member of the Legislature, or sent by a constituent to a member of the Legislature •Photos/videos of bodies taken for the Medical Examiner's records •Criminal investigatory records •Victims records (only the victim has access) •Information that might jeopardize the security of computers/networks •Public employee related grievances, or info generated by them in relation to a sexual harassment complaint or collective bargaining

Freedom of Information Act request

Anyone can launch a Freedom of Information Act request. This right is not limited to journalists. But largely, only traditional journalists bother because it takes a long time and can ultimately reveal rather dull information - if anything is even released.

Actual Malice

Celebrities must prove the reporter acted with actual malice to win a libel case. Actual malice or reckless disregard for the truth means the reporter must have known that the statement was false before it was published or had a high degree of awareness that is was probably false, if the plaintiff is a public figure or public official.

Civil cases

Civil cases involve disputes between people. A jury can be used but normally isn't. The wronged party files the case. Examples: defamation, breeches of privacy torts. Punishments: monetary damages awarded to the wronged party or orders to do or not do something. Proof: preponderance of the evidence. Attorney: No guarantee that one will be provided to the defendant.

Congressional Hearings

Congress is not subject to the Freedom of Information Act or the Government in the Sunshine Act. But most meetings of Congress are accessible to most people. The congressional press galleries offer more access to some members of the press, but you have to qualify for credentials to get access to get that access.

The First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Copyright protection

Copyright can protect original works of authorship including: literature, software, music, dramatic works, pantomimes, choreographic work, pictures, graphic, sculptures, movies and even architecture. Something that does not have a copyright is said to be in the public domain and cannot be protected.

Criminal

Criminal cases involve crimes against the state and usually involve a jury. Such cases are brought by a prosecutor on behalf of the state.Punishments: Jail time, fines (that go to the state), death Proof: Beyond a reasonable doubt.Attorney: Will be provided if the defendant cannot afford one.

criminal proceedings

Criminal defendants have a constitutional right to any evidence necessary to their defense, including confidential information. Therefore, the right is not absolute in such matters.

Types of criminal offenses

Disorderly person offenses Examples: possession of marijuana under 50 grams, assault. Petty disorderly person offenses Example: disorderly conduct.

Where do Shield Laws exist in America?

Everywhere except Wyoming has some kind of protection for reporters, though the extent of protection varies.Forty states plus D.C. have pass shield laws.

Who enforced it?

FCC

Example of Fairness Doctrine

In 1969, under the direction of the US Supreme Court, the FCC revoked Lamar Broadcasting's television broadcast license due to the station's segregationist stance and censorship the civil rights movement.

Non-traditional Media

In Too Much Media v. Hale (N.J. 2011), the court ruled that to be covered, claimants must prove: 1. They have the requisite connection to news media; 2. They have the necessary purpose to gather or disseminate news; and 3. The materials subpoenaed were obtained in the ordinary course of pursuing professional news-gathering activities.

White House press

In modern times, a bunch of reporters selected by the White House have been given space to work in the west wing of the White House. There is no minimum number of press conferences the White House must hold.

consistent method of testing information

Journalism, they declared, was being practiced by "untrained accidental witnesses.", a transparent approach to evidence - precisely so that personal and cultural biases would not undermine the accuracy of their work."

issues with dmca

Making a legitimate, personal copy of a DVD you paid for is illegal. Reverse engineering copyright protection technologies - even for scientific purposes - is illegal. The DMCA has also curtailed sales of after-market printer ink cartridges and video game accessories.

Meetings

Meetings of public bodies default to open to the public. To hold a closed/executive session the group must specify a statutory exemption. There are no special rights for the press.

NJ Shield Law

NJ has a very protective shield law. It covers "the identity of the source and any news or information obtained in the course of pursuing professional activities, including information from the source." N.J.S.A.2A:84A-21.

Exceptions of Shield Law

NJ shield law "does not include any situation in which a reporter intentionally conceals from the source the fact that he is a reporter, and does not include any situation in which a reporter is an eyewitness to, or participant in, any act involving physical violence or property damage."

Landmark case of Prior Restraint

Near vs. Minnesota

recording conversations in New Jersey

New Jersey has a opted for the popular, one-party consent law: only one person on the call needs to consent to the recording for it to be legal., "An individual who is a party to either an in-person conversation or electronic communication, or who has the consent of one of the parties to the communication, can lawfully record it or disclose its contents, unless the person is doing so for the purpose of committing a criminal or tortious act. A person also can lawfully record electronic communications that are readily accessible to the general public."

Near vs. Minnesota

Olson was also a lawyer, so he sued the paper under the Public Nuisance Act of 1925, which held that a business regularly publishing "obscene, lewd, and lascivious" or malicious, scandalous and defamatory" things could be legally barred from publishing. Essentially, Olson claimed the paper's racist articles (and negative articles about him) made it a public nuisance.,the 1931 Supreme Court decision holding that the first amendment protects newspapers from prior restraint. crucial military info; obscenity; statements clearly inciting acts of violence.

Freedom of Information Laws (FOI)

Open Records Laws: State open records laws Federal Freedom of Information Act, Open Meetings Laws: State open meetings laws Federal Government in the Sunshine Act

prior restraint

Prior restraint occurs when the government tells a journalist that something cannot be written or published. Fortunately, this rarely permitted in the U.S. because of the First Amendment.

Four Torts of Privacy Law

Publication of private facts Intrusion into seclusion False Light Appropriation

Why do some journalists opt never to use shield laws?

Shield laws leave it up to the courts to decide who is a journalist and who is not. Some feel this wrongly puts the government in the role of regulating journalism.

implications

That detached, neutral third-party tone used in traditional news stories might be intended to indicate that such a practice has been used.

Fairness Doctrine Revoked in 1987

The FCC abolished the Fairness Doctrine in 1987 because they felt it violated the first amendment, as it told broadcasters what they had to include and what they could not broadcast.

background

The information can be published but only under the conditions negotiated with the source. Normally, the the source will ask that their name not be published but agree that a description of their position can be used.

deep background

The information can be published but the source cannot be named or identified in any way.

On the record

The information can be used and the source can be named.

off the record

The information cannot be published but it could be used to help steer the reporter to similar information from sources willing to go on the record.

civil proceedings

The shield law is often successfully used by journalists who do not wish to reveal their sources as part of a libel case. The shield is intended to be absolute in such matters.

realism

This 19th century news writing philosophy held that the truth would become apparent if the information was ordered correctly. "If reporters simply dug out the facts and ordered them together truth would reveal itself rather naturally."

Publication of Private Facts

This involves the publication or broadcast of facts that are private and would be offensive or shocking to the average person. Such stories are often about rape, sexual orientation, addiction, mental illness, medical conditions and school grades. It doesn't matter whether the information is true. The balancing test lies between newsworthiness and the individual's reasonable expectation of privacy. Most plaintiffs lose such cases, because the court tends to believe that anything the public is interested in is newsworthy. Most ethical codes for journalists, however, tend to steer reporters away from publishing such information.

Appropriation

This is sometimes called a person's "right of publicity." It refers to the unauthorized use of a person's name, likeness or another integral aspect of the individual without that person's consent. Usually, this occurs when a company claims a celebrity endorses a product without the celebrity's consent.

Police issues press pass

This normally requires providing recent articles about events in the jurisdiction, and can sometimes involve a formal interview. A police-issued press pass CAN grant you access behind police tape lines, into police-run press conferences and behind the scenes at some events. But it is no guarantee.

False Light

This occurs when a reporter misrepresents someone; Unlike libel, the misrepresentation need not be defamatory. It need only be false.

Intrusion into seclusion

This occurs when a reporter trespasses on private space, whether physically or using technology. The tort holds regardless of whether the information was ever published. Expectation of Privacy People should have no expectation of privacy when in a public place. Therefore, reporters have the right to record (video and/or audio) of people in public places. Reporters do not have the right to record people in private places, such as their homes. Reporting in a "public" space in a privately owned property is where things get tricky. As a general rule, reporters have the right to enter privately owned public places (private school campuses and shopping malls, for example) without permission but must leave or stop gathering information if asked to do so.

Renna vs Union County Alliance

Tina Renna, Blogger on The County Watchers writes that she knows 16 Union County employees who powered up the county's generators for personal use after Hurricane Sandy. Union County prosecutors filed a subpoena asking Renna to testify before a grand jury about the information she alluded to on her Website. Renna argued that she should be protected by NJ's shield law because: 1)She was actively engaging in the news process; 2)Her posts disseminated information to readers; 3)The information was obtained in course of her newsgathering because she talked to sources, attended freeholder meetings, and used the Open Public Records Act. This final point carried significant weight and she became the first blogger in NJ to be protected by the NJ Newsperson's Shield law.

fairness

about being impartial and honest. It's about being fair to the evidence.

Digital Millennium Copyright Act (DMCA)

amended the US Copyright Act, so that digital works are also protected. makes it illegal to circumvent technologies used by copyright owners to protect their work. It also makes it illegal to tamper with copyright management data.issues

Minors

best practice is to ask first, Minors can be photographed and interviewed without the consent of their parents, under federal law. However, two states -- New Jersey and Maine - require parental consent for a student to be pictured or named on a school-operated website.

Section 230 of the Communications Decency Act

can sometimes protect you from a charge of defamation, if the defaming statement is made on your Website but by a third party - not you or your employee or someone acting under your direction.

how long does copyright last

copyright generally lasts for 70 years after the death of the author. If the work was a "work for hire", then copyright lasts for 120 years after creation or 95 years after publication, whichever is shortest.

American legal system involves two very different kinds of cases

criminal, and civil

fair use

defense against a legal claim of copyright infringement 4 factors Limited: Using a small percentage of a copyrighted work is likely fair. Purpose: Educational, non-profit, and commentary uses are usually fair. Money: If using the work does not deprive the copyright holder of money, it is probably fair. Nature: The less creative the original material, the more likely the secondary use is fair.

copyright laws

designed to protect creative works from being used without permission.

Press Pass

doesn't give you the right to access all crime scenes, walk past police tape, or enter any room you like. It's really just a form of ID, saying you work for a particular company.

Shield Law

gives journalists the right to refuse to testify in a court of law with regard to the name or identity of a source, as well as the information provided or how it was gleaned.It is one of the only laws that applies solely to journalists.

Government in the Sunshine Act (GISA)

holds that government agency meetings should default to being open, unless it is in the public interest for it to be a closed meeting. Each agency gets to determine what amounts to such an exemption, however.

Defamation

injury to character

RIAA (Recording Industry Association of America)

launched a challenge for folks to try to crack SDMI copyright protection watermarks. Prof. Ed Felten of Princeton University cracked the system and publicly planned to present his work at a conference. The RIAA threatened to sue Felten under the DMCA. Felten ultimately won and was able to present his paper on the grounds that silencing him would be against his first amendment rights.

transparency

newest form

press freedom for student journalists

none, For the last 30 years, public schools have largely felt they had the right to prevent student journalists from publishing articles that don't represent the school's values, in school publications.

Group think, or pack journalism

occurs when the the press touts a certain line, collectively. Essentially, they are all telling one or two stories and it becomes a trap when journalists start (subconsciously or otherwise) selecting the facts that fit their narrative and ignores other facts. "A modern term for it is the master narrative. Bush was a strong leader. Or he was dumb."

actus reus

or guilty act proving the act occurred. In legal terms the criminal action or conduct

copyright is like....

owning a car. Only the owner of a the car can loan it out, sell it, or alter it

mens rea

proving intent. The prosecution must prove that the statements were made with the intent to harass the victim. In legal terms, such intent to commit a crime

Free Flow of Information Act (FFOIA)

seeks to establish a federal shield law. It is currently languishing in committee.

Slander

spoken defamation

Hazelwood v. Kuhlmeier

students at Hazelwood East High School in St. Louis, Missouri wrote articles about teen pregnancy and the impact of divorce based on the experiences of other students at the school. The articles were slated to appear in the school paper, The Spectrum, but the principal deleted the pages with those stories - without any prior consultation with the students or notice. District court finds in favor of school: The students believed their First Amendment Rights were violated by the principle and the case went to the U.S. District Court for the Eastern District of Missouri. The court ruled that the school had the right to remove articles that were written as part of a class. The court ruled that educators at Hazelwood did not offend the First Amendment because their actions were "reasonably related to legitimate pedagogical concerns." schools have the right to refuse to sponsor speech that was "inconsistent with 'the shared values of a civilized social order.'"

objectivity

the idea was that the METHOD of reporting should be objective. Not the journalist. reporters and editors were becoming more aware of the rise of propaganda and the role of press agents."

What media is not included in the Fairness Doctrine?

the internet and Newspapers, in contrast, were and are unregulated. Anyone can start a newspaper.

Traditional Media

the law covers reporters, editors and photojournalists who work for newspapers and professional websites - even those who work part time.

balance

usually portrayed as a quantitative measurement: giving equal time or space.

Libel

written defamation, Libel includes content written down, as well as anything broadcast on TV, the radio, or the Internet.

A reporter's access to a location depends on the type of property. (3)

•Public property restrictions are generally limited to reasonable time, place and manner regulations, while private property owners have much more control over access. •Private property access comes down to the issue of consent. If someone agrees to let you in to their home, you can enter. •Nonpublic government properties do not normally grant greater access to journalists than the general public.

five exclusive rights for copyright

•Reproduce; •Adapt; •Publicly Perform; •Publicly Display; •Distribute.