Media Law 101

By Mary Beth Saffo

“Scientists,” said NPR lawyer Ashley Messenger, “are kind of touchy about their work.”

Remarkably, scientists are one of the three professions most likely to sue journalists for libel, Messenger said during the Media Law 101 session at Professional Development Day. For this and other reasons, it is prudent for science journalists to acquaint themselves with the several ways in which their work can intersect with the law, she said. The Reporters Committee for Freedom of the Press (www.rcfp.org) provides useful basic information and legal advice to journalists. Where available, writers should make use of legal resources and protections provided by employers. Those writers without access to such resources should strongly consider personal media liability insurance, for protection against potential legal costs.

Libel is a false statement that harms another person. Merely questioning the validity of data is not libel; but asserting that a scientist is manipulating data, which implies unethical behavior, can be. Journalists can protect themselves in reporting about controversial scientists or scientific issues by clearly laying out the facts on which their conclusions are based.

Media law attorney Kevin Goldberg (Fletcher, Heald & Hildreth, PLC) outlined the basics of copyright law, which he identified as an increasingly common – and complicated – legal problem for creators of print and digital media. Knowledge of and adherence to copyright law is important, because the costs of even minor copyright infringement can be severe, Goldberg said.

Before using material created by others, journalists must determine the owner of the material (not always a straightforward issue to resolve), the date of its creation (a factor which affects the term of copyright), and their justification for using that material.

One should never assume that it is legal to copy a work just because it is publicly available. Materials can be copied if:

• They are federal government documents, which are not subject to copyright; however, even these documents may contain copyrighted materials, licensed only for government use, which cannot be copied by others without permission.
• Their copyright has expired, and they are now in the public domain,
• A writer has a license to reproduce the material; users should be attentive to the specific terms of that license, which can constrain use in various ways. To protect themselves against potential legal challenges, journalists should document the provenance of every copied work.
• They are meant for “fair use,” that is, reproduction of a small segment of a noncommercial work, for noncommercial purposes. Fair use is a legally fluid and uncertain term that is open to misinterpretation.

Deborah Nelson, associate professor of investigative journalism at the University of Maryland, reviewed the challenges of protecting anonymous sources. Depending on the type of case (state or federal, civil or criminal), legal privileges for identity protection can vary from absolute privilege (journalists are never required to reveal their sources) to qualified privilege (the court weighs the relative merits of the right to privacy versus the need for information) to no privacy protection at all.

Therefore, for practical reasons, journalists should avoid citing anonymous sources as much as possible, instead asking their sources for help in corroborating the source’s information by other means, Nelson said. If use of anonymous sources is essential, journalists should work to safeguard their sources’ identities as much as possible. Because of the variability and unpredictability of legal privileges, journalists should never guarantee to their sources that anonymity can be protected in all circumstances.

Laura Helmuth, health, science, and environment editor of the Washington Post, encouraged writers to pursue stories about the powerful, and not to be intimidated by legal concerns. In such situations, however, it is essential to seek legal advice whenever the slightest legal concern arises, she said.