Fall 2008 - Internet
Vol. XXIX, No. 3 - Page 15
Old issues, new questions
© 2008 Student Press Law Center
By Kelsey Beltramea
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."
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