When going about your work as an online journalist, beware of the following legal hazards:
- Trade secrets
- Private information
The Electronic Frontier Foundation, Digital Media Law Project , Chilling Effects, and the First Amendment Project offer excellent legal resources for online journalists. Not being legal experts ourselves, we provide links to and summaries of their most useful guides below.
How to Avoid Copyright / Trademark Issues
Generally speaking, copyright and trademark issues can be avoided by only using others' content (writing, photos, footage, logos) with permission or as specified in special licensing.
Tips Regarding Copyright
Content that is generally OK to copy:
- Work from the federal government (though work created by private contractors might be copyrighted)
- Short, attributed quotes
- Facts and ideas
- Creative Commons-licensed work (so long as you follow the stipulations of the license- for more on that, see our guide to properly using and citing Creative Commons photos)
Copyrighted content may also be used if you can make a Fair Use argument. These arguments are strong if:
- Your material is not commercial and is intended to provide education, commentary, criticism, or parody
- The work you have copied is fact-based/nonfiction and is publicly available
- The copied work only makes up a small portion of your material (in other words, most of your work is original)
- Your use of the copied work does not negatively effect its value or its owner's ability to make money from it
We do not recommend making a habit of using copyrighted content in your work; several lawyers we have interviewed tell us that Fair Use arguments are just asking for trouble. For more information on Fair Use, review the U.S. Copyright Office's Fair Use guide.
If someone believes that you have violated their copyright, they may send a DMCA complaint. Should this happen, and should you have made a mistake with regard to permissions, we recommend just taking the offending work down, though if the complaint is unfair, you may wish to file a counter-notice. For more information on DMCA complaints, visit our guide to protecting and defending your work from theft.
For more thorough advice with regard to potential copyright issues, visit the Electronic Frontier Foundation's intellectual property guide.
Tips Regarding Trademarks
The Electronic Frontier Foundation's intellectual property guide also provides tips on using trademarks (as does this Chilling Effects Trademark FAQ). Though we recommend reading through the entire EFF guide, their top tips and recommendations with regard to trademark use are summarized below:
- Trademarks can be used to refer to the trademark owner and its products
- You are all the more safe when using trademarks if your work is noncommercial
- Do not imply, though the use of a trademark, that the associated company has endorsed you
- When using a trademark, also do not to imply that you are speaking on behalf of the associated company
On a related note, avoid using the likeness of a celebrity or public figure in a manner that implies endorsement. Should you use another's likeness for personal gain (e.g. advertising, driving sales) in a manner that may be seen as causing injury, that individual might make a right of publicity claim.
How to Keep from Sharing Trade Secrets
When sharing information about a company, be sure that you are not inadvertently sharing a trade secret.
Chilling Effects provides a helpful guide to dealing with trade secrets. In this guide, trade secrets are generally introduced as information that is:
- Not easily accessible or available to the public
- Not known by the general public or many people outside the business
- Protected by certain barriers (e.g. locked drawers, passwords, restrictive processes)
- Labeled as confidential or secret
- Valuable in that its exposure could harm the business
When getting insider information about a company from one of its employees, be sure that the information shared does not fit the description above and that your source is not violating a nondisclosure agreement (NDA) created to prevent the dissemination of company secrets. If a company gives you permission to share a trade secret, be sure that said permission is well documented.
How to Avoid Defamation Lawsuits
As a journalist, you can find yourself in legal trouble for defamation, which generally can be described as a statement that may damage someone's reputation. More specifically, defamation counts as:
- Sharing information about someone (to someone other than that person)
- That is clearly about that person
- That is false, but might be interpreted by a reasonable individual to be a fact
- That will harm that person's reputation
- (If the person is a public figure) that was shared with "actual malice" (meaning you knew the information was false or you recklessly disregarded the truth)
If your information meets the description above, you may find yourself in legal trouble. Defamation need not be restricted to published and broadcasted claims you make (this is known as libel); even spoken statements that hurt another's reputation (known as slander) can lead to litigation.
To avoid accusations of defamation:
- Do not knowingly share false information and fact check claims before publishing them
- When sharing information that could hurt someone else's reputation, make sure you can prove that it is true
- Make sure that your opinions are clearly just opinions
- Not republish a defamatory statement made by another person
For more guidance on avoiding defamation, visit the Electronic Frontier Foundation's overview of online defamation law.
How to Protect Sources and Information
We see an ability to protect sources as a very important practice amongst journalists. The Digital Media Law Project provides several helpful guides on doing so, which we link to below, along with summaries of their top tips and insights. We strongly recommend reading through each Digital Media Law Project guide from beginning to end.
- Ideally, your sources will rarely be confidential; it is best to have everything on the record and for attribution
- If you promise confidentiality to a source, you may (depending on your state) gain further protection from legal demands that you reveal his or her identity
- If you reveal your source's identity to anyone, you might lose your ability to protect the information later, as that person might be required to disclose the information
- If you promise confidentiality to a source, you may also be legally bound to keep that promise
- You may be legally bound to protect confidentiality by contract if you promise (verbally, in writing, etc.) to maintain the source's confidentiality in return for the source doing something for you (e.g. provide information)
- Some courts, citing the First Amendment, have not held journalists to contracts regarding confidentiality
- You may be legally bound to protect confidentiality by detrimental reliance or promissory estoppel if your source has much to lose if you break your promise
- Any confidentiality you promise may be challenged by subpoenas, search warrants, or discovery orders
- Subpoenas are commands to provide information to a court case by appearing in person or by supplying documents or information
- Search warrants enable law enforcement officers to conduct searches and seize evidence and are obtained if officials can demonstrate "probable cause" that the search will yield evidence of a crime
- Should you be involved in litigation, discovery orders may be used by the opposing party to gather information from you for use in the case
- While there is no federal shield law, over 30 states in the U.S. provide shield laws to journalists who gather information for dissemination to the public
- The extent to which shield laws protect sources and journalists varies from state to state, hence it is important to become familiar with the shield laws of one's home state
- The Privacy Protection Act (42 U.S.C. § 2000aa(a),(b)) may product you from search warrants (in that you can sue for damages after a search has taken place) if you possess work product or documentary materials that you intend to "disseminate to the public a newspaper, book, broadcast, or other similar form of public communication"
- Some courts interpret the First Amendment of the U.S. Constitution as providing journalists with a "reporter's privilege," however the precedent for this is shaky, so it is probably unwise to depend on it
- Some state constitutions have explicit protections for journalists; check to see whether your state does
- Some states have common law privileges for journalists, though be aware of wide variation and pervasive gray zones
- Be extremely judicious when promising confidentiality
- Do not share information you have promised to keep confidential
- Stop by State Law: Legal Protections for Sources and Source Material and find what your state's laws may do to protect your confidential sources and materials (and whether those laws cover professional journalists only, or those who may not earn the majority of their income from journalism as well)
- Consider the impact your desired publication channels may have on your ability to protect confidentiality (some states only protect confidentiality for work published in certain media formats)
How to Gather Private Information
The Digital Media Law Project provides excellent guides regarding the collection of private information, which we recommend reading thoroughly. The gist of what they explain is below.
You need to be aware of "intrusion upon seclusion" (basically, invasion of privacy). You may be liable for intrusion upon seclusion if:
- You intentionally invaded another person's private affairs
- A reasonable person would find your invasion of privacy to be offensive
- The intrusion in question was of a truly private matter
- The intrusion lead the person or people involved to experience mental anguish or suffering
You are likely safe from liability if you:
- Photograph or capture video footage of people in a public area where subjects would not have a reasonable expectation of privacy
- Both you and the footage you capture are on public property (i.e. you are not using a telephoto lens to photograph someone on their private property from a public rooftop)
- Obtain private information from publicly-available documents
- Obtain consent from the person or people you are photographing or filming (should those people be legally able to give it)
Intrusion laws vary from state to state in the U.S., so read through the Digital Media Law Project's guides and following through one of their links to review the intrusion laws for your state.
Recording phone calls, meetings, and events may also expose you to liability. The following Digital Media Law Project guides provide tips on safely addressing those scenarios:
- Recording Phone Calls and Conversations
- Recording Police Officers and Public Officials
- Recording Public Meetings and Court Hearings
- Practical Tips for Recording Phone Calls, Conversations, Meetings, and Hearings
- State Law: Recording
- Obtain and document others' consent before recording conversations
- Do not record conversations in which you are not a participant
- While some states have laws against recording police officers and public officials, many courts have defended our First Amendment rights to do so (see the First Amendment Project's guide to anti-SLAPP laws for more guidance on the subject)
- It is not OK to interfere law enforcement officers as they attempt to make arrests
- It is not OK to trespass into secure government areas or private property
- It is generally OK to record public meetings and court hearings so long as you are not disruptive, though local governments may have specific rules on what recording devices may and may not be allowed
- Do not conceal your devices when recording hearings, meetings, or events
- Familiarize yourself with intrusion recording laws in your state before gathering information that might be seen as private
Obtaining Documents & Property
The following Digital Media Law Project guides cover the acquisition of documents and property for reporting purposes:
- Elements of Conversion
- Receiving Documents and Information from Government Sources
- Practical Tips for Acquiring Documents and Other Property
- Personal property includes intangible information, such as domain names and confidential information
- Ask for permission from the owner of personal or private property before borrowing or using it
- If a source provides you with materials, make sure he or she has the right to provide them, and to play it safe, ask for copies to avoid taking possession of originals
- If you interfere with the private property of another person, you may be held liable for conversion
- A plaintiff can accuse you of conversion of he or she had rights to that personal property at the time of interference, you intentionally interfered with it, your interference deprived the plaintiff of possession or use of the property, and the interference caused the plaintiff damage
- You can be held liable for conversion if a source gives you a piece of personal property that he or she did not have the right to give
- Should you receive confidential information from a government employee, you may be criminally prosecuted for aiding a government employee in violating the federal Espionage Act or conspiring with him or her to do so
- There are additional government statues betond the Espionage Act with which you may encounter trouble should you receive confidential information
Documenting Court Cases
The Digital Media Law Project offers advice on covering public proceedings and events in their guide to live blogging and tweeting from court.
- If you are an active participant in cour proceedings, know the specific rules that apply to you; there are likely to be restrictions on what you can share
- Whether you are allowed to live blog or live tweet from court is contingent on the rules of the courthouse and the judge presiding over a given case; check with those parties before parading into a courtroom with your live blogging gear
- In many cases, you will need to get special permission from a judge to live blog a court case; as you are less likely to hear back from a judge, consider reaching out to a member of the judge's staff instead
- When requesting permission to live blog a court case, clearly outline your credentials and process and present a strong argument as to why your coverage would serve the public interest
Understanding Anti-SLAPP Laws
Should someone sue you because of your work as a journalist, it might be considered a SLAPP. SLAPP stands for "strategic lawsuit against public participation"; in other words, it is a lawsuit that arises from expression regarding public concerns.
Several states have laws protecting journalists from SLAPPs and it is worth checking to see whether your state may be one of them. Anti-SLAPP laws can protect you from several forms of lawsuits that might be prompted by work you publish, including:
- Invasion of privacy
- Malicious prosecution or abuse of process
- Intentional infliction of emotional distress
- Interference with contract or economic advantage
If your state does not protect you from SLAPPs, your homeowner's or renter's insurance might, so it is also well worth checking with your insurance agent to see whether this is the case.
For more information on anti-SLAPP laws, the sort of coverage that is commonly protected by them, and how to deal with a SLAPP, visit the First Amendment Project's guide to anti-SLAPP laws.
Our goal is to never charge for the educational materials we provide. If you’d like to give back, please share our lessons (and Gigaverse in general) with your friends. Who knows- you might introduce someone to an entirely new career path and change their life!
Only take this lesson’s quiz if you are enrolled in the course and want to prove your skills and earn official credentials. Credentials related to a course are useful if you would like to find work related to this course’s career, as we direct businesses and entrepreneurs to our membership page when they approach us looking for specialists.
Finally, make sure you have reviewed this lesson’s required reading (displayed at the top right of the page) before taking the quiz- you will be tested on information covered in those guides!