Dear Students,
I wish all of you a prosperous new year in the study of Media Law. The topics sofar you have covered as opposed to your contemporaries put you far ahead of them.
There are other topics like the Law of Copyright, Obscenity and Erotic Material, Advertising, Telecommunication Regulations and the rest that you've got to study if Media Law is to be added to your syllabus this semester.
However, you should review on all we've learnt sofar in class lectures, such as: The Legal System: the Sources of Law and the Judicial System; Libel: Establishing a Libel Case, Elements of Libel, Proof of Fault, Damages and Defenses; Invasion of Privacy: Intrusion, Misappropriation, False Light, Publication of False Material, and the entire topic on Invasion of Privacy.
Study well so that you can pass with flying colors the semester exams slated immediately at the resumption of the semester.
Greetings. May God bless you all.
It's me,
Dr. Alfred Massaquoi-C
Friday, January 4, 2008
Saturday, November 3, 2007
Law: Invasion of Privacy ( click journalism 3 class to return to this page again)
Invasion of Privacy
Invasion of Privacy: Intrusion
Invasion of Privacy: Publication of private facts
Invasion of Privacy: False light
Misappropriation
Invasion of Privacy: Right of publicity
9 Keys to Avoiding Invasion of Privacy Suits
Other newsgathering concerns
Invasion of Privacy: Defenses
Invasion of privacy: Reporter's privacy checklist
Surreptitious recording
Surreptitious Recording: State hidden camera statutes
Confidential sources and information
Confidential sources and information: Legislative protection of news sources
Confidential Sources and Information: Constitutional privilege protects sources
Confidential Sources and Information: A reporter's obligation to a source
Invasion of Privacy: Intrusion
Invasion of Privacy: Publication of private facts
Invasion of Privacy: False light
Misappropriation
Invasion of Privacy: Right of publicity
9 Keys to Avoiding Invasion of Privacy Suits
Other newsgathering concerns
Invasion of Privacy: Defenses
Invasion of privacy: Reporter's privacy checklist
Surreptitious recording
Surreptitious Recording: State hidden camera statutes
Confidential sources and information
Confidential sources and information: Legislative protection of news sources
Confidential Sources and Information: Constitutional privilege protects sources
Confidential Sources and Information: A reporter's obligation to a source
Lecture notes 17
Confidential Sources and Information: What to do when you are subpoenaed
Receiving a subpoena does not mean the marshal will be coming to the door to arrest you. It is simply notice that you have been called to appear at a deposition or other court proceeding to answer questions or to supply certain documents.
You may not ignore a subpoena, however. If you fail to appear at the time and place specified you could be held in contempt of court, and fined or imprisoned, or both.
If you are subpoenaed, there are certain steps you should take immediately.
Under no circumstances should you comply with the subpoena without first consulting a lawyer. It is imperative that your editor or your news organization's legal counsel be advised as soon as a subpoena is served so a plan of action can be developed.
If your state has a shield law, the lawyer must determine whether it applies to the information sought and to the type of proceeding involved. Even if your state does not have a shield law, state courts may have recognized some common law or constitutional privilege that will protect you.
Working with your editor, the lawyer will then recommend a strategy for handling the subpoena, taking into account your news organization's policy governing compliance with subpoenas and revelation of unpublished information or the names of sources.
If a subpoena requests only published or broadcast material, your newspaper or station may elect to turn over these materials without dispute, as a matter of policy. If the materials sought are unpublished, such as notes or outtakes, or concern confidential sources, it is unlikely that your employer has a policy to turn over those materials voluntarily.
Every journalist should be familiar with the news organization's policy for retaining notes and drafts. Follow the rules and do so consistently. If your news organization has no formal policy, talk to your editors about establishing one. Never destroy notes, tapes, drafts or other documents once you have been served with the subpoena.
In some situations, your news organization may not agree that sources or materials should be withheld, and may try to persuade you to reveal the information to the party issuing the subpoena. If the interests of your news organization differ from yours, it may be appropriate for you to seek separate counsel.
http://www.rcfp.org/handbook/c04p05.html
Lecture notes 16
Confidential Sources and Information: A reporter's obligation to a source
Subpoena battles typically arise out of a journalist's commitment to keep his or her source confidential. Many reporters consider their promises to confidential sources to be sacred, and routinely have faced jail to protect their sources.
In 1991, the Supreme Court was asked to decide whether a confidential source may sue a news organization that reveals his identity without his consent.6 The Supreme Court ruled that the First Amendment does not protect journalists from such suits, and left it to the states to decide whether media organizations would be subject to ordinary rules of contracts and "promissory estoppel" (in which a court enforces a promise made to a party who relied on it to his detriment).
Many news organizations have reexamined their policies on whether reporters have the authority to promise unconditional confidentiality to a source, or whether such undertakings can be overruled by editors. You should familiarize yourself with the policy in effect at your news organization.
Subpoena battles typically arise out of a journalist's commitment to keep his or her source confidential. Many reporters consider their promises to confidential sources to be sacred, and routinely have faced jail to protect their sources.
In 1991, the Supreme Court was asked to decide whether a confidential source may sue a news organization that reveals his identity without his consent.6 The Supreme Court ruled that the First Amendment does not protect journalists from such suits, and left it to the states to decide whether media organizations would be subject to ordinary rules of contracts and "promissory estoppel" (in which a court enforces a promise made to a party who relied on it to his detriment).
Many news organizations have reexamined their policies on whether reporters have the authority to promise unconditional confidentiality to a source, or whether such undertakings can be overruled by editors. You should familiarize yourself with the policy in effect at your news organization.
Lecture notes 15
Confidential Sources and Information: Constitutional privilege protects sources
The issue of whether the First Amendment creates a privilege to withhold confidential information came before the U.S. Supreme Court in 1972 in a trilogy of cases decided together under the name Branzburg v. Hayes.3 The Court ruled that reporters have no First Amendment right to refuse to testify and answer all questions before grand juries if they actually have witnessed criminal activity.
However, Justices Lewis Powell and Potter Stewart recognized a qualified constitutional privilege in separate opinions. Two other justices joined Stewart. These four justices, together with Justice William O. Douglas, who dissented in a separate opinion, gave the qualified constitutional privilege a majority.
Since Branzburg, many federal and state courts have acknowledged the existence of some form of qualified constitutional privilege. Where the privilege is recognized, the courts generally utilize a three-part balancing test to assess whether the subpoenaed information is clearly relevant and material to the pending case, whether it goes "to the heart of the case" and whether it could be obtained from other sources besides the media.
The Branzburg ruling is usually strictly applied to any journalist subpoenaed to testify before a grand jury, especially if the reporter was a witness to a crime. When an important criminal proceeding is at stake, courts may find that the public interest is better served by compelling the reporter to testify.
In criminal trials, many courts apply the three-part balancing test to determine whether the defendant's Sixth Amendment right to confront all witnesses against him outweighs the reporter's need for confidentiality. The decision usually comes down to whether the information sought is clearly essential to the proof of the crime, or to the defendant's defense.
Additionally, many states will not allow reporters to assert shield law protections to avoid testifying if they witness criminal activity.4
A reporter is most likely to enjoy at least a qualified constitutional privilege in civil cases to which he or she is not a party. The courts frequently find that the public interest in protecting the reporter's news sources outweighs the private interest in compelling the reporter's testimony.
In libel cases, however, reporters who are defendants may face demands to reveal their confidential sources, particularly if the contested information is the basis of the allegedly defamatory reports.
Public officials and public figures, who must demonstrate actual malice, argue that they need to know the names of confidential sources (if any exist) to demonstrate that the reporters knew their stories were false or acted in reckless disregard of the truth. These plaintiffs also argue that access to unpublished information is necessary to determine if the selection of information for a news story showed actual malice on the part of the news organizations.
A number of trial courts have held that before a reporter can be compelled to testify in libel cases, the plaintiff must prove by substantial evidence that the challenged statement was published and is both factually untrue and defamatory.
The plaintiff also must prove that reasonable efforts to discover the information from alternative sources have been made, and no other reasonable source is available. Further, these plaintiffs must show that the informant's identity is needed to properly prepare the case.
Courts also have begun to recognize that subpoenas issued to non-media entities who hold a reporter's telephone records, credit card transactions, or similar material may threaten editorial autonomy, and the courts may apply the reporter's privilege if the records are being subpoenaed in order to discover a reporter's confidential sources.5
The issue of whether the First Amendment creates a privilege to withhold confidential information came before the U.S. Supreme Court in 1972 in a trilogy of cases decided together under the name Branzburg v. Hayes.3 The Court ruled that reporters have no First Amendment right to refuse to testify and answer all questions before grand juries if they actually have witnessed criminal activity.
However, Justices Lewis Powell and Potter Stewart recognized a qualified constitutional privilege in separate opinions. Two other justices joined Stewart. These four justices, together with Justice William O. Douglas, who dissented in a separate opinion, gave the qualified constitutional privilege a majority.
Since Branzburg, many federal and state courts have acknowledged the existence of some form of qualified constitutional privilege. Where the privilege is recognized, the courts generally utilize a three-part balancing test to assess whether the subpoenaed information is clearly relevant and material to the pending case, whether it goes "to the heart of the case" and whether it could be obtained from other sources besides the media.
The Branzburg ruling is usually strictly applied to any journalist subpoenaed to testify before a grand jury, especially if the reporter was a witness to a crime. When an important criminal proceeding is at stake, courts may find that the public interest is better served by compelling the reporter to testify.
In criminal trials, many courts apply the three-part balancing test to determine whether the defendant's Sixth Amendment right to confront all witnesses against him outweighs the reporter's need for confidentiality. The decision usually comes down to whether the information sought is clearly essential to the proof of the crime, or to the defendant's defense.
Additionally, many states will not allow reporters to assert shield law protections to avoid testifying if they witness criminal activity.4
A reporter is most likely to enjoy at least a qualified constitutional privilege in civil cases to which he or she is not a party. The courts frequently find that the public interest in protecting the reporter's news sources outweighs the private interest in compelling the reporter's testimony.
In libel cases, however, reporters who are defendants may face demands to reveal their confidential sources, particularly if the contested information is the basis of the allegedly defamatory reports.
Public officials and public figures, who must demonstrate actual malice, argue that they need to know the names of confidential sources (if any exist) to demonstrate that the reporters knew their stories were false or acted in reckless disregard of the truth. These plaintiffs also argue that access to unpublished information is necessary to determine if the selection of information for a news story showed actual malice on the part of the news organizations.
A number of trial courts have held that before a reporter can be compelled to testify in libel cases, the plaintiff must prove by substantial evidence that the challenged statement was published and is both factually untrue and defamatory.
The plaintiff also must prove that reasonable efforts to discover the information from alternative sources have been made, and no other reasonable source is available. Further, these plaintiffs must show that the informant's identity is needed to properly prepare the case.
Courts also have begun to recognize that subpoenas issued to non-media entities who hold a reporter's telephone records, credit card transactions, or similar material may threaten editorial autonomy, and the courts may apply the reporter's privilege if the records are being subpoenaed in order to discover a reporter's confidential sources.5
Lecture notes 14
Confidential sources and information: Legislative protection of news sources
Thirty-one states and the District of Columbia have adopted shield laws affording the media varying degrees of protection against subpoenas.2 Some shield laws protect reporters from forced disclosure of their confidential news sources, but not of unpublished material. Other laws provide absolute or qualified protection according to the type of legal proceeding involved (civil or criminal) or the role of the journalist in the proceeding (defendant or independent third party).
In many states without shield laws, state courts have recognized some form of qualified privilege. In others, state constitutions may include "free press" provisions, which are similar to the U.S. Constitution's First Amendment protections and afford qualified protection. There are several states, however, such as Hawaii and Wyoming, where no privilege to protect unpublished sources or information has been recognized by the courts or legislatures.
Reporters should become familiar with the scope of their state's privilege to withhold confidential sources and information, as recognized by a shield law, state constitution or in case law.
Thirty-one states and the District of Columbia have adopted shield laws affording the media varying degrees of protection against subpoenas.2 Some shield laws protect reporters from forced disclosure of their confidential news sources, but not of unpublished material. Other laws provide absolute or qualified protection according to the type of legal proceeding involved (civil or criminal) or the role of the journalist in the proceeding (defendant or independent third party).
In many states without shield laws, state courts have recognized some form of qualified privilege. In others, state constitutions may include "free press" provisions, which are similar to the U.S. Constitution's First Amendment protections and afford qualified protection. There are several states, however, such as Hawaii and Wyoming, where no privilege to protect unpublished sources or information has been recognized by the courts or legislatures.
Reporters should become familiar with the scope of their state's privilege to withhold confidential sources and information, as recognized by a shield law, state constitution or in case law.
Lecture notes 13
Confidential sources and information
The use of subpoenas to force journalists to disclose their confidential news sources and unpublished information significantly intrudes on the newsgathering process.
Apart from diverting staff and resources from newsgathering, subpoenas issued to the news media present serious First Amendment problems. The forced disclosure of sources or information threatens the constitutional right to a free press by undercutting the media's independence from government and deterring coverage of matters likely to generate subpoenas. Indeed, the U.S. Court of Appeals in Philadelphia (3rd Cir.) has recognized that "the interrelationship between newsgathering, news dissemination, and the need for a journalist to protect his or her source is too apparent to require belaboring."1
The use of subpoenas to force journalists to disclose their confidential news sources and unpublished information significantly intrudes on the newsgathering process.
Apart from diverting staff and resources from newsgathering, subpoenas issued to the news media present serious First Amendment problems. The forced disclosure of sources or information threatens the constitutional right to a free press by undercutting the media's independence from government and deterring coverage of matters likely to generate subpoenas. Indeed, the U.S. Court of Appeals in Philadelphia (3rd Cir.) has recognized that "the interrelationship between newsgathering, news dissemination, and the need for a journalist to protect his or her source is too apparent to require belaboring."1
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