From the Legal Hotline (877-NEWS-LAW)
Public notice website posting requirements, Marsy’s Law and more in today’s Legal Hotline recap.
Q. Section 50.0211(2), F. S., states each notice must be placed on the newspaper website and section (3) says it must be placed on the statewide website created by FPA. If in the future we choose to do so, would simply linking to floridapublicnotices.com from our website suffice for both? Does it matter how notices are found on our newspaper site or where the landing page is, as long as it is easily accessible for our online readers?
A. My advice is that in keeping with the “posted to the newspaper’s website” language, the notices should be posted there separately from just having a link for downloading to the FPA site. While it would be easier to just use a link, I think the intent of the language is to have a direct presence on the paper’s site.
Q. I was just informed we are having a feed/tech issue with one of our FL papers. Is there someone at the FPA who we can have our tech team connect with to resolve? Any info or contact help is appreciated.
A. Please contact Kendra Schubert at KSchubert@flpress.com or 321.283.5344. She is well versed in these areas and I am sure will be able to help.
Q. Can you provide the latest on Marsy’s Law, the victim’s rights amendment? Our local police department is using the amendment to refuse to release almost all information. Even after the family has been notified, the police department will not release the name of deceased vehicle crash victims. When it comes to property and other crimes, they will not release even the address or location because it “could” identify the victim.
As you can imagine, it is difficult to publish a local newspaper when law enforcement agencies adopt such a liberal interpretation of the amendment.
The local sheriff’s office has not taken as staunch of a stand, but the local PD is claiming its association or insurance lawyers are advising a much more strict approach.
We are being faced with running stories like: “Something happened somewhere Tuesday, but law enforcement officials have declined to release any more specifics due to concerns associated with potentially violating Marsy’s Law.”
A. As was reported in the July 17 e-Bulletin, some agencies and entities read the language narrowly and do not limit release of information unless the victim asks them to do so in some form, thereby somewhat limiting the law’s impact. See the memos from Fla. Sheriffs Assoc. and Miami-Dade County cited there. You might refer your local PD to this material.
At present, there is still nothing to report in the way of specific push back. However, there is a lot of activity by several groups we are assisting/coordinating with. In particular, they are looking into possible legal and policy arguments to possibly help steer legislation next session. Also, Barbara at FAF has been collecting anecdotal information and reporting it regularly to legislative staff. As soon as we hear anything in the way of guidance/pushback, you will be first to know. As for now, I’m afraid each law enforcement agency is going to have a good deal of discretion in determining what to withhold.
Keep in mind as you consider the implications of Marsy’s Law, that it is only intended to limit what the government can do, not what a newspaper can report. That means the government (via Marsy’s Law or otherwise) cannot prevent you from publishing truthful information of public concern (including victim identifying information) that the newspaper obtains, (even if unlawfully acquired), provided the publisher did not participate in the unlawful conduct.
Finally, regarding the availability of court records, the clerks of court and others are hotly debating how Marsy’s law affects them. The issue is whether the clerks must affirmatively hunt for and redact victim identity information in court filings or, on the other hand, leave that to a judge to make the determination upon a filed motion. The clerks are concerned about being burdened by having to do this and are resistant to the redaction idea. Recently, the Florida Supreme Court referred the issue to its rules committee and it appears that they will be making the final determination. We will keep you updated.
Q. A handful of companies are using our newspaper content without our permission on wooden plaques which they assemble or have assembled. Some of these companies actually subscribe to the local newspapers and then tele-market everyone that is in the paper trying to sell them a reproduction of the paper with their article on the plaque. They also have “others” who will subscribe to the paper and feed them the content after their subscriptions are cancelled. (They even sent a letter to one of our publishers when his paper ran the story that he was elected as president of a local nonprofit!) Is this infringement? If so, you might let members and citizens know about it.
A. This was addressed in the e-bulletin earlier this year but since we continue to get complaints, I wanted to again reiterate that these activities do infringe on the paper’s ownership of the copyright in the written material and rights to the logo/marks.
If you want to object to the practice, you could send them a short letter/email (see below). [And, perhaps initially contact them by phone to let them know about your objections—as that may get their immediate attention]. Keep in mind that I have heard that some of these companies try to push back by claiming the right to use their digital subscription to the newspaper, which has a print option, to produce these pages and plaques. However, that is not legally supportable and you should tell them that.
Pursuant to our telephone conversation on _____________, please know ________________newspaper is the owner of the copyright in certain published articles as well as the trademark and design of certain marks the [newspaper] has been using for _____ years.
It has come to our attention that your company has been using such material and marks in connection with plaques for sale and profit for quite some time.
The use of this material constitutes copyright and trademark infringement. The consequences of such infringement are significant. Since your company has been using our material for a long period of time, damages could be available to our company under the copyright laws.
We hereby demand that you cease and desist from using, copying, or displaying [newspaper] copyright material and marks. Please respond to this email by __________ confirming that you have ceased using this material.
You also state on your website that [company] works in conjunction with various publishing companies…” to produce these reproductions. This is a misleading statement since your company has no such arrangement with the [newspaper].
We would prefer to avoid litigation over this matter but reserve all rights and remedies available under law.
Thank you for your attention to this matter.