Old issues, new questions

It is a routine practice for people looking for internships and jobs. One letter after another, they carefully type their names into Google and hit “Enter” to delve up their pasts. High school sprinting records. Scholarship announcements. And a mention in the university police blotter for underage drinking?

Widespread use of search engines and Web archival systems have upped the ante for journalism; because of the Web, records no longer simply appear in print one day and disappear to microfilm the next. The long-term accessibility of electronic publishing and rapid response abilities of online posters often put journalists in ethical quandaries, balancing a desire to preserve the historical record while simultaneously minimizing harm and avoiding liability.

Correcting Web content

“We get a lot of people that Google their name, and they find some quote they gave us in 1997 and they think it makes them look bad,” said Albert Sun, Web editor in chief at The Daily Pennsylvanian. “But we tell them we just can’t [delete archived information]. You want your newspapers to be a good record of what’s happened in the past, but you have to balance that with people’s expectations that things they’ve done in the past will stay in the past.”

The Daily Pennsylvanian alters content in a story only when the material is proven to have a factual misrepresentation. In addition to running a correction in the print version of the newpaper, the staff puts an asterisk in front of the corrected Web story, indicating the date the article was corrected, and sometimes includes a description of the correction at the bottom of the article, Sun said.

An unscientific poll on the College Media Advisers Web site found about 41 percent of the nearly 50 respondents handle requests to delete, change or update items on publication Web sites by allowing the student editors to decide on a case-by-case basis. Almost 44 percent of more than 80 people who responded to a separate survey question said their outlets have specific, clearly written policies that govern Web corrections, updates and deletions.

Though The Daily Pennsylvanian has no formal policy of its own, staffers try to follow the example set by professional media outlets. Most papers retain all stories exactly as they appear in the final print edition and append any corrections in a separate box. But the immediacy with which content can be altered and the triviality of the error must also factor into staffers’ decisions to make corrections, some argue.

“If something was wrong online for five minutes, you might be doing more harm than good if you say this was wrong before,” said Eric K. Meyer, an associate professor of journalism at the University of Illinois at Urbana-Champaign. “That’s one of the very complicating factors in online corrections.”

Adam Goldstein, attorney advocate for the Student Press Law Center, advised that publications alter articles only with a written agreement releasing them from liability.

“If someone wants the original text corrected, they should be willing to sign a release that agrees they won’t sue the newspaper over the corrected version,” he said. “Otherwise, corrections should appear at the bottom of the page, but never in the text itself, because changing the original text [may] create a new window for lawsuits.”

Each state has a statute of limitations for libel, beginning when a statement is first published. Though the laws vary from state to state, they usually require that libel lawsuits be filed within one to two years, no matter the medium. When an article is altered, it could be construed as republishing, essentially restarting the clock.

When archives go online

As publishers increasingly migrate to the Internet — making years of archived material newly accessible on the Web — it is not clear when that clock begins ticking.Since December 2004, when Google co-founders Sergey Brin and Larry Page announced their “Google Books” Library Project, about 30 institutions across the country have partnered with the program to upload millions of volumes of text, which often include back issues of campus newspapers.

Other institutions have resolved to digitize on their own. For example, about 25,000 pages of the Yale Daily News dating back to 1878 now are available online thanks to the university’s Digital Production and Integration Program.

The first phase was mostly accomplished by May, when nearly 21 selected years of Yale Daily News archives were released onto the Internet, including the first year of publication and those spanning World War I and World War II. The Yale Daily News is the oldest college daily newspaper published in the United States, and 123 years of archives will be available when the digitization is complete.

But those records are not accessible directly through Google. One must first open the newspaper database to search material from old publications.

Kevin Vanginderen, an alumnus of Cornell University, found his school’s old publications can be found simply by Googling his own name.

Vanginderen, who practices law in California, was taken aback when he found a 1983 article from the Cornell Chronicle, a non-student publication owned by the university press office, that linked him to burglary and theft charges.

Vanginderen filed a $1 million lawsuit in October that claimed the Chronicle libeled him in the article and that the recent digitization of the article constituted “republication” — making the paper liable again for the article, though the statute of limitations for claims against the original story ran out long ago.

A federal judge dismissed Vanginderen’s claim, ruling that the article was substantially true and thus could not be libelous. But to the dismay of Cornell attorney Nelson Roth, the judge refrained from ruling on the republication issue, which Roth said held larger implications.

“If we were to redact or delete that information like [Vanginderen]‘s asking us to do, we would be redacting or deleting that part of the historical record, a record that was always available on the library shelves,” Roth said.

Peter Hirtle, Cornell University Library’s intellectual property officer, said a ruling against the university in Vanginderen’s case would likely bring worldwide efforts to digitize library and commercial archives to a “screeching halt.”

If the court deemed Web uploading of the newspaper to be “republishing,” Hirtle said it would be “disastrous for projects that wanted to make material available online. … [E]very time you wanted to digitize something, you would have to make the same sort of editorial decisions that the original editors did the first time they published it.”

Hirtle said the Cornell University Library just finished digitizing 100,000 books with Microsoft and will add another 500,00 with Google. “And we are under no position to review the content of those books to see if there is anything defamatory in them,” he added.

Frederick Martz agreed. He is the special projects librarian in Yale University’s Digital Production and Integration Program.

“If you really had to fact check everything, it would simply stop the project. We simply couldn’t do that,” Martz said.

Officials at Yale are describing their project as “a faithful digital reformatting” and not “republishing,” he said.

Yale’s Usability and Assessment Librarian, Kathleen Bauer, added, “We’re taking something that’s publicly available on our library shelves right now, and in my view, we’re just making it more accessible.”

Comment boards

But unlike when articles were published and only stored away on library shelves, audiences now have the ability to offer their immediate opinions on the Internet. And those comments can be instantaneously affixed to articles with the click of a mouse.

Rusty Lewis, director of newspaper relations at the College Media Network, said his company offers two ways for the newspaper staffs it hosts to monitor their comment boards. Editors either moderate the messages as they come in, or allow them to immediately go live onto the Web site and take down those they consider to be offensive.

Of the more than 600 college newspaper Web sites the New York-based College Media Network hosts through College Publisher, roughly 60 percent of them allow the comments to go up without any moderation, Lewis said.

Charles Derry, a professor of theater arts at Wright State University in Dayton, Ohio, wished there would have been more moderation of student publication The Guardian’s message board.

Students approached him after reading a comment he allegedly authored in response to a student’s online letter to the editor. The posting called a student Derry advises in the theater arts department a fool.

“I felt as if I had been the victim of identity theft, that someone had taken my name,” Derry said. “And it was immediately clear to me that someone who did this was someone who knew I was the student’s adviser and was trying to hurt her by having her mentor humiliate her in public.”

He asked The Guardian to remove the comment, but editors refused, citing the First Amendment rights of whoever did post the comment. So he filed an official complaint requesting that the Student Media Board force The Guardian to remove the comment and also provide the true identity of the poster.

The matter was settled, however, when editors at the newspaper learned a College Media Network policy prohibited impersonation on Web sites it supports. A clause in the “Terms of Use” agreement says the Web site owner should not use or allow others to use the site in any manner that, among other things, “may or may appear to impersonate anyone else.” The editors removed the comment without disclosing the poster’s identity.

“Ultimately in our case, because of that small line in the College Publisher online policies, we were able to take care of this problem at this time,” said Ann Biswas, The Guardian’s adviser. “But it really was eye-opening that we really need to be proactive and create policies in advance of complicated First Amendment-type clashes that we might experience.”

Biswas said her students’ main concern was protecting the First Amendment rights they believed the poster held, because they wanted to maintain an open forum. Now staffers at The Guardian are considering whether they want to have editorial oversight of the comments before they are posted, she said. Biswas noted she wished there was a better mechanism for verifying posters’ identities before allowing them to comment.

But Lewis said there is very little the server can do to verify identities of those that respond to articles online beyond requiring that users provide a working e-mail address.

In any event, neither Lewis’ company nor the publications it hosts can be held liable for comments on the Web. Section 230 of the federal Communications Decency Act shields College Media Network and publications like The Guardian from liability, because it holds that no provider or user of an interactive computer service can be treated as the publisher of any information provided by someone else.

However, someone could subpoena identifying information, like an IP address, about a suspect poster through the courts. An IP address is a numerical identification that can be traced to a specific Internet service provider.

The Ball State Daily News in Muncie, Ind., was subpoenaed in March for records after staff members published a story about a university employee’s lawsuit. The newspaper’s adviser, Vince Filak, said people posted personal attacks on the woman in response to the story on the Web, and she wanted to know who the posters were.

When she subpoenaed the Ball State Daily News for the posters’ identifying information, the paper refused to provide it.

“We really didn’t want to turn the information over just on general principle, because we didn’t want to set any kind of precedent,” said Filak.

He said he worried that a wave of others might come to the Ball State Daily News Web site to uncover posters’ identities and that there would be a chilling effect on the comment board. The newspaper obtained volunteer legal counsel through the Student Press Law Center’s Attorney Referral Network to contest the subpoena, and the matter still is pending.

Though there are legal protections for media outlets, Bob Steele, a scholar of journalism ethics and values at the Poynter Institute , said media outlets still have a responsibility to their readers to keep an eye on what others post on their message boards.

“The problem is there can be great harm to individuals if the monitors aren’t watching closely,” he said. “People can leave quite harmful remarks toward individuals or groups.”

Steele added that diatribes can quickly outweigh thoughtful dialogue. “It’s important from a quality control perspective for the operator of the site, including student newspapers, to have a meaningful monitoring function.”

Dustin Gardiner, The Daily Utah Chronicle’s editor in chief, said stories on its Web site can acquire up to a couple dozen comments if they are popular. The student-newspaper staff monitors comments after they are posted, looking for instances of libel and hate speech.

“We’ve written a lot of stories about undocumented immigration, and a lot of times you get people that post hate speech that distract from the purpose of the online forum,” he said.

Whereas newspapers can be held liable for content published in print as a letter to the editor, they cannot be punished for material published online unless it infringes a copyright or constitutes child pornography, or unless newspaper staffers collaborate with the poster in creating the content. Even newspapers that choose to monitor Web comments — removing material that staffers determine is inappropriate or seems libelous — cannot be held accountable in court for “publishing” those statements.

“We don’t monitor comments because you have any legal responsibility to do it,” Gardiner said. “We do it because we think it’s the right thing to do.”

Fall 2008, reports