Legal Questions

(This post is part of an assignment for the class I am taking, Writing for Digital Media at the School of Journalism and Mass Communication, University of North Carolina at Chapel Hill. This week, I am writing responses in regards to questions about legal implications of writing.)

Note to professor: This assignment was very difficult for me, easily the most difficult of the semester. I work in a Legal department, which has taught me how much I am not cut out to think like a lawyer :) My job is on the technical side, so by its nature I am focused not on legal minutiae, but making sure they have the technical tools to do their job. I had to really "flip" my normal daily mindset to do this assignment. Which was good, but very difficult, hence the last-minute timestamp. Hope that makes sense. It was a good exercise, but I found myself being really to-the-point and brief, rather than verbose. At the same time, the point is to learn the law in order to write responsibly. And I appreciate that. Thanks!

1. Response to Privacy Policy:

First of all, I tried to find a privacy policy on the message board I moderate, but there is none. The author, who owns the site, just posts two simple rules: "1. NO SELLING. This is a forum for learning and helping each other, not a marketplace. Do not pitch/link your own products or "special offers" and such to members. You will be banned. 2. NO flaming. If you are mean or degrading to others, you will be banned. Feel free to be critical, but be civilized and suggest alternatives if you disagree with someone."

I found this interesting, a site with no "policy" other than that. Same goes for the main site, http://fourhourworkweek.com - they both collect email addresses and still, no privacy policy, or the like. I would like to ask the author why, if any reason, for the omission.

So, I decided to read google's privacy policy. The most confusing thing about this is, there seem to be two different versions of this posted on their website, one shorter than the other. From http://www.google.com I clicked on the "Privacy Policy" link at the bottom of the page, which led me to http://www.google.com/intl/en/help/privacy_fusionph.html. While reading it, there was a hyperlink to "Google Privacy Policy" which leads to http://www.google.com/privacypolicy.html - which seems to be a longer, more thorough explanation. Confusing.

Other than that, I didn't have any objections. I am sure that some would be disturbed by the fact that third parties may have access to their cookie information, but you have to sign up for (or "plug in") those third-party applications in order for that to happen. Overall, the privacy policy was very easy to read, I think, even for an Internet novice. It was also very careful to outline "what-if" scenarios so users would feel comfortable using their service, such as what would happen during a merger or acquisition.

I would have liked a little more information about how "Google’s Ad Serving cookies" use my cookie information to market certain ads to me. I happen to know a bit about this from my experience, but the privacy policy only gives you direction on how to opt-out of it, without any explanation. This would make me a little nervous as a user -- why tell me I can opt out but give no explanation as to why or how the tool is used?

2. Fair Use Infringement Claim:

At first read I thought the NRECA was overreacting to the CEI's use of their footage. However, it now seems to me that using someone else's footage out of context has its own set of problems. It reminds me a lot of the way politicians use clips of their rivals out of context and sometimes even with different voiceovers in order to make them look bad. Just as in the example of the recent suit files by Kay Hagan when Elizabeth Dole attacked her religious character, it's not good practice and can (and should, in my opinion) lead to a lawsuit.

I didn't find a whole lot specifically in the Fair Use law that applies to this case, but the spirit of the Fair Use Law, to me, was broken by the CEI. In particular, the part about the advancement of ideas, education, information, and knowledge. Some may argue that the CEI was educating and informing, and that may be true of the advertisement as a whole, but the use of the NRECA's public video out of context was clearly an attempt to mock them in some way, even if it was only seven seconds. The "purpose and character" of the use seems more underhanded than proactive.

U.S. Copyright Law is meant to protect creativity and innovation while at the same time allowing enough influence and inspiration so as not to stifle that same creativity and innovation. The NRECA was right in saying that the CEI's use of their documentary video in order to further their own cause was not fair, because, in my estimation, mocking one's creation for your own advancement is just wrong.

3. Advising the news site:

Dear sirs,

It appears to me that this story was fair and factual up until the last few sentences which are a quote from Ms. Hubier. The plaintiff's claim about being portrayed as drunk does not seem to be there, as you accurately published that he was merely "arrested on suspicion." Therefore, I am going to concentrate on the implications of having published that last quote.

Mr. Simmons is a private citizen. Therefore, he only has to prove that your establishment was negligent in publishing the quote that I described above. My concern here is that quote comes from someone who was nearby, but admitted that she really didn't see much. She had very little to go on to make judgments about the driver, and her comments were best left at "it's a damn tragedy."

Therefore, unfortunately, I believe it will be likely that Mr. Simmons can prove negligence on your part.

So, I now concentrate on what defenses we can explore. The good news is there are six essential ingredients to libel that the plaintiff has the burden to prove.

The first is defamation: the word "stupid" certainly is derogatory and I expect his legal counsel to concentrate on that aspect of the case. I don't have a lot to defend that point, but I will certainly continue to explore this.

So, let's move on the next: identification. Because you published Mr. Simmons' name, you have clearly identified him. This is black and white, nothing I can do to defend this.

Let's move to the third: publication. Simply enough, this article was published. Again, nothing I can do to defend this.

Fourth: Fault. As I described above, he needs only to prove negligence in order to prevail. It's a "type" of fault, and I will try to discredit that, as described below:

Fifth: Falsity. We may have a ray of hope here. In order to win the claim, he must prove that the story is false. All things considered, you were publishing a quote of an eyewitness, possibly the only living eyewitness, and there is no falsity in that. Your reporter was not calling Mr. Simmons stupid, the eyewitness was. And any reasonable reader should be able to distinguish this as an opinion, not fact. This will be the focus of our defense. Many readers are actually craving first-hand "opinion" rather than just straight facts in this new Internet environment. You were providing an opinion in the middle of a factual report.

And finally, the sixth: Injury. This is a very easy claim for virtually any plaintiff to prove, because it includes psychological injury. I have little doubt about his counsel's ability to prove this point. Once again, nothing I can do to defend this.

I hope you can see that number five is our only hope and what I will be concentrating on from now on in this case.

Sincerely,
Marcie Nottalawyer