Internet and the Law SPLCs thoughts Libel Libel Q. Is there a different body of libel law that applies just to the Internet? Q. Is there a different body.

Internet and the LawInternet and the LawSPLCSPLC’’s thoughtss thoughts

LibelLibel Q. Is there a different body of libel law that applies just to Q. Is there a different body of libel law that applies just to

the Internet?the Internet? A. No. If something is n ot libelous in print, it will not be A. No. If something is n ot libelous in print, it will not be

libelous online, and vice versa. However, the unique libelous online, and vice versa. However, the unique logistics of Internet communication can pose special logistics of Internet communication can pose special risks. For example, it is easy for anyone writing an e-mail risks. For example, it is easy for anyone writing an e-mail to forget that by clicking the to forget that by clicking the ““SendSend”” button, they are button, they are engaging in engaging in ““publishing.publishing.”” A carelessly written statement A carelessly written statement can make its way to a global audience within seconds. can make its way to a global audience within seconds.


LibelLibel It is also easy to repeat or forward defamatory It is also easy to repeat or forward defamatory

statements via e-mail. Because any re-publication can statements via e-mail. Because any re-publication can be just as libelous as the initial posting, anyone who be just as libelous as the initial posting, anyone who obtains such a message and simply forwards it to a obtains such a message and simply forwards it to a friend opens himself to liability. In such cases, the friend opens himself to liability. In such cases, the sender rarely takes the time to verify the identity of the sender rarely takes the time to verify the identity of the original writer or the accuracy of the information. original writer or the accuracy of the information.


LibelLibel Q. We just received a letter-the-the-editor by e-mail. Any Q. We just received a letter-the-the-editor by e-mail. Any

special concerns about publishing it?special concerns about publishing it? A. Know that it is relatively easy to fake the source of an A. Know that it is relatively easy to fake the source of an

e-mail message and, just as with letters received by e-mail message and, just as with letters received by regular mail, your newsroom should establish and regular mail, your newsroom should establish and adhere to a verification policy both for the identity of the adhere to a verification policy both for the identity of the author and the facts contained in the letter. The same author and the facts contained in the letter. The same goes for using a particular Web site as a source for goes for using a particular Web site as a source for information. It is difficult to sort the legitimate sources of information. It is difficult to sort the legitimate sources of information from the unreliable ones. information from the unreliable ones.


LibelLibel Q. Does our publicationQ. Does our publication’’s libel insurance policy cover s libel insurance policy cover

online editions?online editions? A. Almost all of them do. Whe the Internet frist emerged A. Almost all of them do. Whe the Internet frist emerged

as a viable publishing medium, many libel insurance as a viable publishing medium, many libel insurance companies started adding online coverage to existing companies started adding online coverage to existing policies, according to Leib Dodel, an underwriting policies, according to Leib Dodel, an underwriting manager with the media insurance company Executive manager with the media insurance company Executive Risk. While Internet coverage is now automatically built Risk. While Internet coverage is now automatically built in to almost every policy, it is worth taking a moment to in to almost every policy, it is worth taking a moment to check your policy to see if you have it. check your policy to see if you have it.


PrivacyPrivacy Q. My high school principal says that privacy law Q. My high school principal says that privacy law

requires us to remove student names and photos from requires us to remove student names and photos from the online version of our paper even though they are the online version of our paper even though they are routinely published in our print version. Is this true?routinely published in our print version. Is this true?

A. No. School officials across the country often citing A. No. School officials across the country often citing some vague and general threat to student safety have some vague and general threat to student safety have sought to require anonymity in student online media. The sought to require anonymity in student online media. The SPLC is aware of no law that requires such restrictions. SPLC is aware of no law that requires such restrictions. In fact, such restrictions might not even be permitted In fact, such restrictions might not even be permitted under the First Amendment. under the First Amendment.


PrivacyPrivacy Q. Can a student reporter use a brief but revealing Q. Can a student reporter use a brief but revealing

comment she obtained from an Internet discussion group comment she obtained from an Internet discussion group or or ““chatroomchatroom”” as a source in a story without the source as a source in a story without the source’’s s permission or are such statements private?permission or are such statements private?

A. One of the key questions in such cases is whether the A. One of the key questions in such cases is whether the ““sourcesource”” has abandoned his or her expectation of privacy has abandoned his or her expectation of privacy by posting the comments online. If the comment is by posting the comments online. If the comment is posted in an open discussion or chatroom, where posted in an open discussion or chatroom, where membership is not tightly regulated, members know that membership is not tightly regulated, members know that as soon as they hit the as soon as they hit the ““SendSend”” button, their comments button, their comments


PrivacyPrivacy may be viewed instantly by hundreds or thousands of may be viewed instantly by hundreds or thousands of

individuals across the world. It would be tough to argue individuals across the world. It would be tough to argue that a reporterthat a reporter’’s use of such comments would constitute s use of such comments would constitute an unlawful exposure of information the writer did not an unlawful exposure of information the writer did not want revealed. On the other hand, if the discussion want revealed. On the other hand, if the discussion group is a closed forum, accessible only to a small group group is a closed forum, accessible only to a small group of subscribers who may or may not have promised to of subscribers who may or may not have promised to keep discussions confidential, the sourcekeep discussions confidential, the source’’s belief that s belief that conversations are taking place away from public scrutiny conversations are taking place away from public scrutiny may be more reasonable, and the expectation of may be more reasonable, and the expectation of


PrivacyPrivacy privacy heightened. In both cases, some would probably privacy heightened. In both cases, some would probably

argue that professional ethics, if not the law, demands argue that professional ethics, if not the law, demands that a reporter obtain the consent of the that a reporter obtain the consent of the ““sourcesource”” prior to prior to publishing his or her comments. In any event, as with all publishing his or her comments. In any event, as with all Internet communication, you will need to be very careful Internet communication, you will need to be very careful to verify that the information is really coming from the to verify that the information is really coming from the person whose name has been associated with the person whose name has been associated with the comment. You must also be sure to keep the writercomment. You must also be sure to keep the writer’’s s comments in context. It can be dangerous to use one comments in context. It can be dangerous to use one particular comment in isolation, without reference to the particular comment in isolation, without reference to the discussion which preceded it.discussion which preceded it.


PrivacyPrivacy Q. Can school administrators monitor student journalistQ. Can school administrators monitor student journalist’’s s

e-mail or Web usage?e-mail or Web usage? A. This is an open and apparently unresolved issue. One A. This is an open and apparently unresolved issue. One

question is whether the monitoring of e-mail can be question is whether the monitoring of e-mail can be considered a considered a ““searchsearch”” in violation of the protections in violation of the protections given by the Fourth Amendment. While courts have said given by the Fourth Amendment. While courts have said that public high school students do have some privacy that public high school students do have some privacy rights when they are on school grounds, they have also rights when they are on school grounds, they have also made clear that such rights are more limited than those made clear that such rights are more limited than those for the public-at-large. For example, the Supreme Court for the public-at-large. For example, the Supreme Court has held that high school officials may search personalhas held that high school officials may search personal


PrivacyPrivacy items such as a purse or backpack without a warrant items such as a purse or backpack without a warrant

when they have when they have ““reasonable grounds for suspecting that reasonable grounds for suspecting that the search will turn up evidence that the student has the search will turn up evidence that the student has ““violated…either the law or rules of the school.violated…either the law or rules of the school.”” School School officials, however, may not officials, however, may not ““searchsearch”” based on a hunch; based on a hunch; they must have reason to believe that the specific they must have reason to believe that the specific student broke an articulated rule. In other words, officials student broke an articulated rule. In other words, officials may not search every studentmay not search every student’’s backpack just to uncover s backpack just to uncover one studentone student’’s illegality. Courts have even been more s illegality. Courts have even been more lenient with respect to high school student locker lenient with respect to high school student locker searches, usually on the grounds that lockers are searches, usually on the grounds that lockers are


PrivacyPrivacy considered school, as opposed to personal, property. considered school, as opposed to personal, property.

The validity of locker searches, however, rests on a The validity of locker searches, however, rests on a studentstudent’’s reasonable s reasonable ““expectation of privacy,expectation of privacy,”” or the or the likelihood that the student views her locker as a truly likelihood that the student views her locker as a truly private space. This private space. This ““expectationexpectation”” can be heightened or can be heightened or lowered, depending on a districtlowered, depending on a district’’s policy. Because a s policy. Because a locker is typically viewed as property of the school, locker is typically viewed as property of the school, where students are granted use only as a privilege, where students are granted use only as a privilege, school districts can draft locker use policies warning school districts can draft locker use policies warning students that a search may take place. If there is an students that a search may take place. If there is an articulated policy, a studentarticulated policy, a student’’s belief that her locker iss belief that her locker is


PrivacyPrivacy private space will probably no loner be reasonable, private space will probably no loner be reasonable,

giving school officials much more leeway in conducting giving school officials much more leeway in conducting involuntary searches. It is possible that a court might involuntary searches. It is possible that a court might apply this rationale to school--provided computer apply this rationale to school--provided computer systems. In such cases, the amount of privacy student systems. In such cases, the amount of privacy student could expect regarding their e-mail and Internet use could expect regarding their e-mail and Internet use would depend largely upon a schoolwould depend largely upon a school’’s policy and s policy and practice. Yet, there are obvious differences between a practice. Yet, there are obvious differences between a student locker and a student e-mail account that make student locker and a student e-mail account that make the blanket application of existing the blanket application of existing ““locker lawlocker law”” analysis analysis both unreasonable and unlikely.both unreasonable and unlikely.


PrivacyPrivacy For example, e-mail messages would rarely, if ever, For example, e-mail messages would rarely, if ever,

pose the pose the ““imminent dangerimminent danger”” created by drugs or a gun created by drugs or a gun stored in a locker. Such immediate and tangible threats, stored in a locker. Such immediate and tangible threats, which have almost always tipped the scales against which have almost always tipped the scales against student privacy concerns, simply do not exist in the student privacy concerns, simply do not exist in the Internet context. It is also much harder to argue that a Internet context. It is also much harder to argue that a student e-mail account is school student e-mail account is school ““propertyproperty”” in the same in the same way as a student locker. While schools may own the way as a student locker. While schools may own the computer hardware that makes online communication computer hardware that makes online communication possible, it is much harder to categorize digitized student possible, it is much harder to categorize digitized student words and thoughts which exist in the ethereal domainwords and thoughts which exist in the ethereal domain


PrivacyPrivacy of cyberspace merely as school property. Finally and of cyberspace merely as school property. Finally and

most importantly students could argue that the sanctity most importantly students could argue that the sanctity of oneof one’’s e-mail, containing ones e-mail, containing one’’s private thoughts, s private thoughts, feelings and other protected speech, should receive feelings and other protected speech, should receive greater legal protection than a school-furnished locker. greater legal protection than a school-furnished locker. The very idea of government officials in a supposed free The very idea of government officials in a supposed free society routinely pouring over the society routinely pouring over the ““privateprivate”” speech of its speech of its citizens has a fundamentally repugnant taste to it--a citizens has a fundamentally repugnant taste to it--a taste which does not seem as palpable in the school taste which does not seem as palpable in the school locker contest.locker contest.


Liability IssuesLiability Issues Q. Can a school, acting as an Internet Service Provider Q. Can a school, acting as an Internet Service Provider

(ISP), be held liable if students publish something (ISP), be held liable if students publish something defamatory?defamatory?

A. While there has yet to be an Internet liability case A. While there has yet to be an Internet liability case directly involving school-sponsored student media, the directly involving school-sponsored student media, the answer is apparently no, provided school officials played answer is apparently no, provided school officials played no active role in the editorial process. The Federal no active role in the editorial process. The Federal Communications Decency Act (CDA) grants immunity to Communications Decency Act (CDA) grants immunity to ISPs in libel and privacy suits involving their subscribers. ISPs in libel and privacy suits involving their subscribers. Recent cases interpreting the CDA have found that even Recent cases interpreting the CDA have found that even where ISPs do examine and discover defamatory where ISPs do examine and discover defamatory


Liability IssuesLiability Issues content, they retain their immunity and are under no content, they retain their immunity and are under no

obligation to remove or retract such statements. obligation to remove or retract such statements. However, a school that does exercise content control However, a school that does exercise content control over student media (or even one that just reserves the over student media (or even one that just reserves the right to do so) would likely be legally responsible for right to do so) would likely be legally responsible for everything that is published. everything that is published.


CopyrightCopyright Q. Is there a different body of copyright law that applies Q. Is there a different body of copyright law that applies

to the Internet?to the Internet? A. At this time, the same general rules apply. However, A. At this time, the same general rules apply. However,

the unique nature of the Internet can complicate the the unique nature of the Internet can complicate the application of existing law because of the difficulty in application of existing law because of the difficulty in comparing the Internet to other communications comparing the Internet to other communications technology. technology.


CopyrightCopyright Q. I just visited a Web site that has some awesome Q. I just visited a Web site that has some awesome

graphics Igraphics I’’d like to use. There is no copyright notice on d like to use. There is no copyright notice on the page. Are the graphics free for the taking?the page. Are the graphics free for the taking?

A. Not necessarily. A Web site, just like any other A. Not necessarily. A Web site, just like any other original work, is copyrighted the moment it is created. In original work, is copyrighted the moment it is created. In most, though not all cases, you must attempt to contact most, though not all cases, you must attempt to contact the owner and seek his or her permission prior to any the owner and seek his or her permission prior to any use. Many times a site will have an e-mail address use. Many times a site will have an e-mail address where you can send inquiries or comments regarding the where you can send inquiries or comments regarding the Web site. Web site.


CopyrightCopyright Q. IQ. I’’ve just received the okay from a Web site owner to ve just received the okay from a Web site owner to

use photos she has posted on her site. Is this enough?use photos she has posted on her site. Is this enough? A. Generally, yes. There is no formal protocol for getting A. Generally, yes. There is no formal protocol for getting

permission. However, you must be certain the person permission. However, you must be certain the person giving the permission is actually the copyright owner, giving the permission is actually the copyright owner, and not just another copyright infringer. The ease with and not just another copyright infringer. The ease with which materials is transferred over the Web can make which materials is transferred over the Web can make tracking down an owner very difficult, so you should be tracking down an owner very difficult, so you should be especially cautious.especially cautious.


CopyrightCopyright Q. Do I always have to get permission to use someone Q. Do I always have to get permission to use someone

elseelse’’s online work?s online work? A. Often, but not always. Just like with print and other A. Often, but not always. Just like with print and other

media, there are times when you do not have to get media, there are times when you do not have to get permission. Such a situation would arise when your permission. Such a situation would arise when your handling of copyrighted work constitutes handling of copyrighted work constitutes ““fair use.fair use.”” The The fair use exception to copyright law allows for the limited fair use exception to copyright law allows for the limited use of copyrighted works without permission when the use of copyrighted works without permission when the use constitutes use constitutes ““criticism, comment, news reporting, criticism, comment, news reporting, teaching…or research.teaching…or research.””

Internet and the Law SPLCs thoughts Libel Libel Q. Is there a different body of libel law that applies just to the Internet? Q. Is there a different body.

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