“Take that Down, Please!” Deleting or Altering Online Content—Some Legal and Journalistic Considerations
“Take that Down, Please!” Deleting or Altering Online Content—Some Legal and Journalistic Considerations
Requests to remove, change or update web content perceived by persons as negative, outdated, or inaccurate are becoming more common and are expected to increase. While such a request was a rare occurrence several years ago, editors today can expect to confront it on a monthly or even daily basis. This is perhaps inevitable due to the exponential growth in digital content, and the fact that posted information is available instantaneously and world-wide, and remains practically permanent—a far cry from the “practical obscurity” that once cloaked printed materials stored in dusty file drawers. Complaining readers also seem to view digital information as a more flexible format and more open to change than print, which would explain why more requests would arise.
Newspaper and other online information providers need to prepare for questions that accompany this current reality. Complaining parties have threatened newspapers with lawsuits for refusing to “unpublish” or alter online stories, citing a variety of reasons. Is there any basis for such a lawsuit? Does the newspaper have an ethical obligation to remove or update web content on an ongoing or individual basis? How should a newspaper handle a request to remove or change digital content from the public or some other entity? What if the request is accompanied by a libel claim? What about mugshots? And, finally, do editors handle requests to change third party postings differently? These and other questions are explored below.
Deleting Material: A Rare Occurrence
Editors and publishers are fairly uniform in their resistance to delete online material absent a very good legal or policy reason. After all, the newspaper views itself as the information gatherer and the keeper of the day-to-day history of the community with a focus and journalistic ethic not to conceal but to reveal. Removing parts of either the print or digital record arguably destroys the public’s trust in the paper’s claim as transparent chronicler of events.
This reluctance is shored up on the legal side, too. A person cannot sue a publication and constitutionally force it to delete an online story (any more than it they can force it to take scissors and cut out a report from a printed edition or microfiche reel)—absent very limited exceptions. Several cases support this statement.
Further, as a practical matter, even if the newspaper deletes the material, this will not produce the blank slate the person desires. In the internet age, editors know that once the article has been posted, the proverbial genie has escaped the bottle and the information will likely already have become a digital fixture, permanently embedded and searchable in a variety of other forms such as blogs, court records, etc. (although some services do claim to lower its visibility).
For all these reasons, editors generally don’t remove online materials. So, for example, deletion probably will not be allowed merely because a source changes his or her mind about an original quote, or a person’s personal circumstances change from that depicted in the original story, or a company’s unfavorable product review fails to mention other favorable reviews. At the New York Times, apparently even plagiarized stories remain as part of the permanent record such as those by ex-Times reporter Jayson Blair that still appear intact in the Times archives with editor’s notes appended to the articles.
On the other hand, justifiable removal of digital content can arise in compelling cases. For example, deletion could be appropriate if it can be shown that publication threatens a person’s life. Pushing the delete button might also be fine to avoid hindering a law enforcement investigation–say, where a suspect may have not seen information in the more geographically limited print edition but would have access to the digital version.
Newspaper website policies should address the criteria the editor will apply to requests to delete material. In fact, some newspapers that have done so are quite cryptic, simply stating the editors consider it by consensus with a presumption to keep the material unless a life is threatened.
Requests to change
In contrast to deletions, editors are much more open to changing a story by updating it or noting a correction, although even here, they are justifiably wary about such requests and weigh them and their motivations carefully. Ethically and legally dealing with these requests can be complicated, and as with just about every aspect of online journalism, is still evolving. There appears to be little consensus, and no policy template, on the correct way to do it, and requests to change articles, like requests to delete them, are considered on a case-by-case basis. There are excellent articles providing informative examples and recommendations on handling such requests.
A couple of key topics come up regularly in this area and warrant further discussion. These are expunction of arrest records, ways to make an alteration, and the statute of limitations. Further, Florida’s new law on removal of mugshots is briefly discussed.
Criminal Record Expunctions
A newspaper may be requested to update its online arrest stories by a person who has had his or her records expunged. Some media experts propose that journalists do indeed have an ethical duty to report on a subsequent expunction if the newspaper had reported on an arrest, criminal charge or conviction. They further recommend that when the expunction is reported, the newspaper should also explain to readers the meaning and implications of the expunction. See “When Cleansing Criminal History Clashes With the First Amendment and Online Journalism: Are Expungement Statutes Irrelevant in the Digital Age?” 19 CommLaw Conspectus 123 (2010), Professors Clay Calvert and Jerry Bruno.
In determining a policy for updating arrest records, newspapers must weigh the additional resources necessary to carry this out. The publication will have to balance reporter and administrative costs with its desire and obligation to accurately inform readers.
Take for example the case where the local clerk of court delivers a list of criminal expunctions to the newspaper and claims it has an ongoing obligation to update (or delete) reference to those arrests in its electronic library. Is the newspaper obligated to do so? The legal answer is that it is not legally obligated. But it may actually want to do this for its audience. However, even then, it may not be able to because of the substantial manpower cost to sync its records with the court’s. After all, it is not an arm of the court. In short, a continuing duty to update arrest records in every case is a serious issue for a newspaper, which may opt to examine each case on its merits.
In those individual cases, what criteria will a publication use? It will have to vet the request to some degree using journalistic and perhaps legal resources. Consider the case where a person calls the newspaper and says the judge threw out the charges and asks that the original report reflect this. The paper can’t just take the caller’s word for it. What about the back-up records? If the caller has no records, will the newspaper contact the court or is documentation available from the lawyer? On the other hand, if an expunction order is provided, is the document sufficient? Does it cover the arrest or charge reported? Is it a reliable copy? Is a certified copy necessary?
Other questions may arise in similar cases: will the newspaper note an expunction for an arrest it never reported? Will it report out-of state expunctions, and if so will it refer in the update to that state’s meaning of expunction? If asked, will it report court action other than expunction orders that have similar implications like acquittals, pleas to a lower charge, an order of dismissal, or the prosecutor decides not to proceed?
At the end of the day, the publication will have to determine what constitutes an appropriate request in expunction and similar cases including what information it will require, ideally in accord with the newspaper’s own guidelines.
Ways to Respond to a Request
If a newspaper decides it is appropriate to update an arrest record—or any other record or story for that matter—there are several logistical options to accomplish this, including posting 1) a follow-up to the story; 2) a corrective note; or 3) an addendum with the new information added. Additionally, a request for removal could be made to Google and other search engines, although there is no guarantee their decision-makers will comply. See “5 Ways news Organizations Respond to ‘Unpublishing’ Requests,” Mallary Jean Tenore, Poynter, July 2010, updated March, 2011.
A primary goal in making the change is that if the original report is searched at a later date, it will appear with the follow-up material or the correction. To that end it would be useful to add the information at the beginning of the original story, either a full note or a link to additional material such as an expunction or acquittal. Bear in mind that if a totally new story is written, a search may not bring up the original story so many publications have a link.
Note that changing the archived original story itself without making clear it is a correction or update has legal drawbacks, as discussed below.
Alternatives To Altering Content
As can be seen, updating online arrest records can be tricky in terms of balancing time and resources with the public’s right to know. To avoid having to do this at all, and to better reflect the gradual decay of informational memory, some scholars have suggested that some online information like arrest records should simply be extinguished after a certain period of time.
Under one version, the online report would be programed to “fall off” the website archives while the printed version would remain in storage as practical obscurity gradually attaches to it. See “Delete: The Virtue of Forgetting in the Digital Age,” Viktor Mayer-Schönberger, Princeton University Press (2009). This is controversial because it goes against the newspaper’s disinclination to delete information, although it has its appeal by limiting costs that the paper would otherwise incur with updates and corrections.
Arrest Booking Mugshot Removal
In 2017, Florida enacted a law (effective July of 2018) requiring websites that publish mugshots to take them down upon the request of the person pictured, and also prohibits companies from collecting a fee to remove mug shots. The law imposes a fine of up to $1,000 per day plus attorney fees and court costs related to enforcing a court order to remove the mug shot. However, the new law does not apply to websites publishing mugshots unless they “solicit or accept payment to remove” them. Thus, the law does not apply to entities like newspapers who sometimes archive mugshots on their websites but do not accept payment to remove them.
Retracting or Correcting Content In Response to Libel/Defamation Claim
Because a response to a retraction/correction demand by someone claiming libel or defamation may have legal consequences, it should be treated differently than a response to a run-of-the-mill online deletion/alteration request. If a newspaper receives a demand to retract/correct allegedly libelous online information, it should take the same precautions as it would for a printed story. This includes being familiar with, and if needed seeking legal advice about, the applicable retraction/correction laws. These laws usually set out time and form criteria for retractions, and often provide benefits to the retracting publication like damage limitations.
Libel Statutes of Limitations
Despite the permanence of online archives, the short legal deadlines that protect news outlets from libel lawsuits have not changed. No matter how loudly a source might complain about removal of an online posting based on libel, any threatened lawsuit against the reporter or news organization is barred after typically short one-to-two-year statutes of limitations run.
Because these statutory deadlines offer powerful protections against stale claims, an editor would definitely want to make online changes in a way that do not inadvertently revive any expired time bar for a particular story.
By way of background, these short time bars begin to run in the case of both printed and internet matters on the date that the publication is originally published. Since the printed story and web version are typically published at the same time, the period will begin and end at the same time. However, in both cases, if there is a subsequent “re-publication,” the limitations will be triggered again.
So an editor should update a story in a way that avoids republication. Regarding corrections and new articles, only newly published matter in the brief correction or news story should start a new limitations period running and a correction or new story that does not defame anyone should not be a problem. On the other hand, if the paper revises the original archived article, it technically becomes a “new” article and the period probably does start to run again. As a result, it usually makes sense to print a separate brief corrective note or brief story to address concerns, and leave the original article alone.
Keep in mind that third-party material posted to the newspaper’s online message board involves additional and different legal considerations. For online postings, important federal laws and considerations come into play, including protections available under Section 230 of the Communications Decency Act and Section 512 of the Digital Millennium Copyright Act.
Altering public postings also arguably involves a different ethical analysis than changing content generated by the publication itself. Say, a poster asks for removal of comments he or she made the year before on an issue the poster now views differently or in a less provocative light. Does the newspaper have more flexibility to delete this material than news and editorial content vetted by the newspaper’s editorial department? Arguably it does. Here, again, the newspaper’s analysis of journalistic ethics will determine the answer.
In Conclusion: Establish Written Guidelines and Policies and Follow Them
As seen above, how a newspaper handles requests to change its online content involves balancing several factors. Although content deletion might be fairly rare, alterations likely will be much more common. Here, policies should be debated and explored by the newspaper editor and staff, and then a consensus implemented as guidelines and best practices. Subsequently, when Joe Q. Public calls demanding removal of material, his concerns will be much easier to deal with because the newspaper will have criteria in place for resolving them.