The once "novel" Internet has become a fixture in school newsrooms as student journalists have readily embraced the newest communications tool. While the law may not have "embraced" the Internet, it has — and continues to — adapt. Below, we explore some of the more commonly asked questions from student media involving libel, invasion of privacy, liability for online communications and copyright and trademark law.
Q. Is there a different body of libel law that applies just to the Internet?
A. Generally, no. If something is not libelous in print, it will not be libelous online, and vice versa.
Still, although the law may be the same, the unique logistics of Internet communication can pose its own risks. The Internet lacks some of the "safeguards" that exist for print media. For example, it is easy for anyone writing an e-mail message to forget that by clicking the "Send" button, they are engaging in "publishing." A carelessly written statement can make its way to a global audience within seconds.
It is also easy to repeat or forward defamatory statements via e-mail. Because any re-publication can be just as libelous as the initial posting, anyone who obtains such a message and simply forwards it to a friend opens himself to liability. In such cases, the sender rarely takes the time to verify the identity of the original writer or the accuracy of the information.
Finally, although something is just as libelous online as it is in print, an online publication might not be liable for re-publishing the statements of others in the context of a letter to the editor or a bulletin board. This is due to the Communications Decency Act's safe harbor provision. 1 More information on the protections offered by this law is available on the SPLC Web site.2
Q. My principal says that privacy law requires us to remove student names and photos from the online version of our paper even though they are routinely published in our print version. Is this true?
A. No. School officials across the country, often citing some vague and general threat to student safety, have sought to require anonymity in student online media. There is no law that requires such restrictions in student-edited media. In fact, such restrictions might not even be permitted under the First Amendment and other press freedom protections. 3
The fact that the information goes to a potential global audience is legally irrelevant.
Before blindly enacting such a policy, school officials should consider that omitting or using incomplete names is not only antithetical to the practice of sound journalism, it is also an invitation for libel and invasion of privacy lawsuits because of the very real danger of misidentification.
Q. Can a student reporter use a brief but revealing comment she obtained from an Internet discussion group or "chat room" as a source in a story without the source's permission or are such statements private?
A. One of the key questions in such cases is whether the "source" has abandoned his or her expectation of privacy by posting the comments online. If the comment was posted in an open discussion group or chat room, where membership is not tightly regulated, members know that as soon as they hit the "Send" button their comments may be viewed instantly by hundreds or thousands of individuals across the world. It would be tough to argue that a reporter's use of such comments would constitute an unlawful exposure of information the writer did not want revealed. On the other hand, if the discussion group is a closed forum, accessible only to a small group of subscribers who may or may not have promised to keep discussions confidential, the source's belief that conversations are taking place away from public scrutiny may be more reasonable, and the expectation of privacy heightened.
In both cases, some would probably argue that professional ethics, if not the law, demands that a reporter obtain the consent of the "source" prior to publishing his or her comments.
And certainly, as with all Internet communication, you will need to verify that the information is really coming from the person whose name has been associated with the comment. You must also be sure to keep the writer's comments in context. It can be dangerous to use one particular comment in isolation, without reference to the discussion that might have preceded it.
Q. Can school administrators monitor student journalist's e-mail or Web usage at school?
A. Probably yes — but the issue is not fully resolved.
If you access a school-issued e-mail account from a school computer, the answer is almost certainly yes. 4 What is less clear is whether the school can monitor your private, third-party e-mail account because you access it on a school computer.
One question is whether the monitoring of e-mail can be considered a "search" in violation of the protections given by the Fourth Amendment. While courts have said that public high school students do have some privacy rights when they are on school grounds, they have also made clear that such rights are more limited than those for the public-at-large. (College students, on the other hand, have traditionally been treated as adults and afforded rights similar to non-students.) For example, the Supreme Court has held that high school officials may search personal items such as a purse or backpack without a warrant when they have "reasonable grounds for suspecting that the search will turn up evidence that the student has violated . . . either the law or rules of the school." 5 School officials, however, may not "search" based on a hunch; they must have reason to believe that the specific student broke an articulated rule.6 In other words, officials may not search every student's backpack just to uncover one student's illegality.7
Courts have been even more lenient with respect to high school student locker searches, usually on the grounds that lockers are considered school, as opposed to personal, property. 8
The validity of locker searches, however, rests on a student's reasonable "expectation of privacy," or the likelihood that the student views her locker as a truly private space. This "expectation" can be heightened or lowered, depending on a school district's policy. 9 Because a locker is typically viewed as property of the school, where students are granted use only as a privilege, school districts can draft locker use policies warning students that a search may take place. If there is an articulated policy, a student's belief that her locker is private space will probably no longer be reasonable, giving school officials much more leeway in conducting involuntary searches.
It is possible that a court might apply this rationale to school-provided computer systems. In such cases, the amount of privacy students could expect regarding their e-mail and Internet use would depend largely upon a school's policy and practice.10
Student journalists could be entitled to additional protection, although no court as yet considered this issue. Student journalists, especially those at public schools, may be able to argue that they have a First Amendment or statutory right to be free from the search of e-mail or the tracking of Web usage that was part of their newsgathering. No credible news organization in the country would allow its files or e-mail to be regularly searched by government officials and the student media should be no different. Under the federal Privacy Protection Act of 1980,11 law enforcement officials may not seize material, including online material, which has been collected "to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication."12 Further, many states have recognized either by state "shield law" or court decision the right of journalists to be free from unwarranted intrusions by government officials. Such laws have frequently been used to protect student journalists and might be used to protect e-mail privacy.
Whether or not this type of monitoring is legal, it is probable that a number of schools could already be monitoring computer system use — some unintentionally. Many Internet content filtering packages include monitoring capabilities by default. 13 Statistically, then, it seems likely that some of these packages have been configured to use the monitoring capabilities as well as the content-blocking capabilities.
Because of the risk of electronic snooping by school or government officials, student journalists who need to ensure that their confidential newsgathering materials or communication remains secure should take special precautions. Secure files, for example, should probably not be stored on computers linked to the school's network. E-mail to confidential sources should take place outside of school, using private computers and private e-mail accounts for both the sender and recipient. (Similar practices should probably also be used for confidential telephone communications.)
Q. Can a school, acting as an Internet Service Provider (ISP), be held liable if students publish something defamatory on the publication's school-hosted site?
A. While there has yet to be an Internet liability case directly involving school-sponsored student media, the answer is apparently no, provided school officials played no active role in the editorial process.
The Federal Communications Decency Act (CDA) grants immunity to ISPs in libel and privacy suits involving their subscribers. 14 Recent cases interpreting the CDA have found that even where ISPs do examine and discover defamatory content, they retain their immunity and are under no obligation to remove or retract such statements.15 Unless there are compelling facts proving otherwise, ISPs are to be regarded automatically as common carriers, just as a telephone company or library would be, and any knowledge they have concerning their subscribers' expression is irrelevant.
By contrast, a school that does exercise content control (rewording/rewriting articles, making affirmative decisions to publish, etc.) over student media could be legally responsible for what is published.
Q. Our newspaper is thinking of opening a live and unmonitored "chat room" for the discussion of school-related issues on our Web site. Would we be liable if someone in the chat room posts a defamatory statement?
A. The language of the CDA indicates that immunity extends to people or entities other than ISPs such as America Online, or a college or university provider. It states that "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."16 Not only are ISPs immune from publisher liability as "providers," but also — as the language indicates — so is any "user" connected with the site who is not the primary creator of the content in question.
This would seem to grant immunity to student editors providing a "live" chat room or an unmonitored online bulletin board where readers are free to post comments. 17
Q. If we see or are alerted to material posted in the chat room that we believe is libelous or otherwise objectionable, can we remove it without subjecting ourselves to liability for other content in the chat room?
A. Yes. A "Good Samaritan" provision in the CDA allows for the voluntary screening of "material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable..." 18 While removing such material is okay, it is probably not safe for an ISP to make additions to or rewrite content provided by others if immunity is to apply in full force. If a court concluded that an ISP was a content provider because it contributed "in part" to information, it is quite possible that such an ISP could lose its immunity.
Q. Can the school be held liable as an Internet Service Provider if students violate copyright law using school computers?
A. Generally not, and absolutely not if it takes the appropriate steps to avoid liability. The "Online Copyright Infringement Liability Limitation Act" 19 exempts ISPs from liability for the acts of others in most cases, including the use of computers to transmit, route, cache or provide users with a connection to copyrighted material. The act also makes clear that a nonprofit educational institution can qualify as an ISP; it includes a specific provision stipulating that, in most cases, a college/university faculty member or graduate student's act of copyright infringement shall not be attributed to the educational institution, regardless of whether they are school employees. 20
This means that, generally, schools are only liable when copyright-infringing information is stored on school computers. That liability, however, can be avoided under another provision in the same statute if the school registers its address and an administrator's name with the Register of Copyrights.21 This person will then be the designated contact person when a copyright owner wants to complain about his or her work being infringed on the school's site. Registering requires paying a one-time fee (currently $30) and mailing a form (available online) to the Copyright Office. 22 Once the school has a registered agent, it will not be liable for infringement by a student as long as it acts promptly to resolve complaints as specified in the statute.23
Q. Does linking to content on another Web site create any special liability problems?
A. Generally no — but that depends somewhat on where you live and the content on the target site. The three biggest dangers in linking are linking to a threatening site, linking in a way that "passes off" another person's content as your own and "deep-linking" to private sites.
While linking to a threatening site has only created a problem in one case (as far as we know), the problem it created was a serious one. A student in Ohio was suspended — and later arrested — for linking to a site that listed students as either "preps" or "anti-preps" and contained a picture of a cartoon gun with the caption "[p]ut this to your foreheads preps and you will think twice." 24 That student faces 13 charges on various menacing and stalking counts, several of which are felonies. The student claims that the site did not contain any threatening material when he created the link on his Web site.25 The disposition of the case has not been released (as per juvenile court rules), but it is highly questionable whether the threats were lawfully subject to sanctions. Being convicted of a crime for a link would certainly seem to violate the Constitution's implicit guarantee of freedom of association.26
Other courts have said that linking to another site does not create special liability risks, although these cases did not involve threats. In one of them, DVD manufacturers were seeking to stop a Web site from publishing their trade secret encryption information. The manufacturers sought an injunction that would prohibit the site from publishing or linking to the information. The trial court granted the injunction against publishing, but refused to prohibit the Web site operator from linking to third-party sites where information about decryption could be found on the grounds that "such an order would be overbroad and extremely burdensome." 27 In the words of an appellate court reviewing the order, the trial court reached its decision because it determined that "links were indispensable to Internet access and a web-site owner could not be held responsible for the content of other web sites."28
Problems with readers believing a linked site belongs to your site are relatively easy to avoid. As long as you clearly identify the source, you can freely link to other sites with or without the permission of the other site owner (although some "Internet etiquette" guides maintain that is only good manners to notify a "linkee" when linking is not solicited). In such cases, you are not liable for material published on the other Web site. Only where someone has linked to another site and tried to pass the linked material off as his or her own, for example, by the use of extensive framing (i.e., showing multiple Web sites in a single browser window in a way that puts one publisher's content next to an unaffiliated publisher's name or logo), has there been any trouble. 29 A link on your page that is clearly labeled (for example, "See story in 10/12/04 New York Times") should suffice.
Linking to content buried deep within a Web site — a practice known as "deep linking" — has been discussed much by legal scholars worried about the economic impact of such links. For example, student media might run into trouble by circumventing any advertising or customer service information that may be contained on a given site. Such linking has led some Web site owners to file copyright infringement and other claims, though they have met with limited success. 30 An easy way to avoid problems is to provide a link to the source's homepage and not to content deep within the Web site. This is usually not necessary, however, since sites that are most worried about the economic risks of deep-linking usually install technology measures on their Web sites that force people to see the front of their site first.
The objective of copyright law is two-fold: First, to promote the free flow of information, which stimulates progress and inspires creativity in others; second, to prohibit duplication, distribution, modification, display and/or performance of copyrighted works without permission, thus promoting the owner's exclusive rights to her work. 31 While the Internet is no doubt the optimum tool for promoting the free flow of information, it has also made copying such information easier than it has ever been, posing a threat to copyright owners.
Q. Is there a different body of copyright law that applies to the Internet?
A. For the most part, the same general rules apply. Copyright owners have full ownership rights in material published on the Internet, and student media have their Fair Use rights as well. Recently, however, Congress had added a handful of provisions that change very specific aspects of copyright law as applied to the Internet.
One of these changes gives a new right to owners of recorded music copyrights: the exclusive right to authorize "streaming" downloads of their music. 32 Prior to this statute, it was not clear whether a Web site could allow streaming downloads of music, since, set up properly, such downloads would not create enduring copies of the music and each individual download would not by itself qualify as a "public" performance, which the copyright statute already banned. After the addition of this provision, however, it is clear permission is required if you want to include streaming music on your site. Note that Fair Use still applies in this situation, however, and a short clip (for example, 10-15 seconds) of music accompanying a CD review would probably qualify as a Fair Use.
Another substantive change to copyright law online has already been discussed above in the liability section. The Online Copyright Infringement Liability Limitation Act 33 limits the liability of those who qualify as Internet Service Providers and take no role in posting the offending content. While music copyright owners now have the right to control streaming of their music, schools can not be held liable for a student who posts a streaming song download that merely passes through the school's servers. Remember, however, to avoid liability for storage, the school must register with the Copyright Office.34
Q. I just visited a Web site that has some awesome graphics I would like to use. There is no copyright notice (for example, (C) 2004 Student Press Law Center) on the page. Are the graphics free for the taking?
A. Not necessarily. A Web site, just like any other original work, is copyrighted the moment it is created. In most — though not all — cases (see below), you must attempt to contact the owner and seek his or her permission prior to using any of the material (graphics, images, text, music, etc.) posted to the site. Many times a site will have an e-mail address where you can send inquiries or comments regarding the Web site. You can also sometimes track down a site owner by utilizing the "Whois" search command. You can conduct a free "Whois" search of the database of registered domain names at the InterNIC Web site (www.internic.net).
Q. I have just received the okay from a Web site owner to use photos she has posted on her site. Is this enough?
A. Generally yes. There is no formal protocol for getting permission. However, you must be certain that the person giving the permission is actually the copyright owner, and not just another copyright infringer. The ease with which material is transferred over the Web can make tracking down an owner very difficult, so you should be especially cautious.
Q. Our newspaper subscribes to a wire service. Is it okay to post wire stories to our online paper as well?
A. If a student paper qualifies as a regular subscriber, it is probably entitled to use wire stories in its online edition as well. The Associated Press, for example, does not charge an extra fee for such use, but does issue copyright stipulations based on the membership status of the applicant. Again, however, it is worth checking your service agreement.
Q. We are tired of the school censoring our online newspaper. Can we move the paper to an outside Internet Service Provider so that the school will no longer have the ability to control its contents?
A. This question, however, also raises some interesting copyright questions. The school could own the copyright and trademark to the paper as a whole and it might be able to claim the name of the paper and perhaps the "look" of the paper, if it is distinctive. In such cases, you could not move past issues of the paper in their entirety to an outside Internet Service Provider without school permission. Nor could you use the name of the paper, for example. However, the copyright to individual articles and other editorial content appearing in back issues is a different matter. Absent a valid agreement to the contrary, unless students were compensated for their work or otherwise considered formal school "employees," the individual students probably hold the copyrights. 35 In such cases, if students wanted to post their own articles on a non-school sponsored Web site, they would be free to do so.
Q. Do I always have to get permission to use someone else's online work?
A. Often, but not always. Just like with print and other media, there are times when you do not have to get permission. Such a situation would arise when your handling of copyrighted work constitutes "fair use." The Fair Use exception to copyright law allows for the limited use of copyrighted works without permission for uses such as "criticism, comment, news reporting, teaching . . . or research." 36 Determining the scope and application of fair use can be complicated. For more information, see the Student Media Guide to Copyright Law, available on the Student Press Law Center Web site.37
Q. We are about to publish an online edition and would like to register our newspaper, The Student Times, under the domain name "studenttimes.com." I know of at least one other student newspaper called The Student Times. Any problems?
A. For .com, .net, and .org domains, only if you fail to act quickly. The short explanation is that these domains are assigned on a first-come, first-served basis. If you are the first person to register the name and you have some valid claim to it, nobody else will be able to take the name from you, even if they started using the name first. Some other top-level domains (such as .info) also work this way, while several others (such as .biz) have special rules about eligibility to register a domain name. As far as .com/.net/.org names, however, just register as soon as possible.
The long explanation requires an understanding of the way domain names are registered (and a handful of acronyms). Domain name disputes are governed by the Uniform Dispute Resolution Policy (UDRP) to which all domain name owners consent at the time of registration. 38 The UDRP governs who has the rights to a domain name the vast majority of the time.39 The UDRP's rules state that to take away a domain name from the initial registrant, a third party has to establish three things in an arbitration proceeding:
All three elements must be shown. Notice that the UDRP is not interested in who started using the underlying trademark first; it only says that the person holding the domain name must have no rights in the name and have registered it in bad faith (e.g., registered it to sell it back to the trademark owner) in order for someone to come along and take it. Therefore, as stated in the short explanation, as long as you have some rights to the name, you should be okay if you register the name first.
While there are areas of Internet law that have not been resolved, there are many that have. Contrary to the belief of some, courts have not entirely rewritten the rules for Internet communication, but have and continue to attempt to tailor traditional rules and the legal principles behind them to the peculiarities of cyberspace. Unfortunately, school administrators have often not kept pace with the changes, which makes it especially important in this area of the law to educate school officials when they take actions that you believe to be violation of your rights or motivated by an unjustified fear. And it is wise for any students who publish online to do their best to understand the boundaries the law sets for them.