From the Legal Hotline (1-877-NEWS-LAW)
Copyright infringement, Facebook liability, and more in today’s Legal Hotline Recap.
Q. Can you take a look at this issue we’re dealing with locally–we think we may have a copyright infringement case against a local resident. This resident has multiple Youtube and Facebook accounts in which he regularly posts videos and other content criticizing local law enforcement, often in a profane/derogatory fashion. The resident is also running for local political office. We have published articles about the resident and he in turn has included the full text of the articles in his videos. Is this a possible copyright violation?
A. This is likely is copyright infringement. The resident is using the articles in their entirety, which makes it harder for him to argue fair use. On the other hand, the resident does appear to be commenting on the paper’s alleged bias, he is engaged in a political campaign, and I doubt that the paper’s ability to sell its services has taken any type of commercial hit. So, a fair use argument might have some legs.
As you know, the paper can’t sue for copyright infringement unless it registers the copyrights for the articles. I don’t know whether you have done so yet.
We asked Jim Maguire with the Thomas, LoCicero firm to weigh in. Jim advises that the real question right now is does the paper want to send a cease-and-desist letter to the resident? In response, he is likely to post that letter and rant and rave about how the paper is biased against him and trying to censor his free speech, etc. Is the paper really interested in devoting time and energy to him right now? Will challenging him actually draw more attention to what he is saying? Would ignoring him actually be more productive?
I would consider these practical considerations before moving forward.
Q. I wanted to ask a question about monitoring Facebook comments to postings done by a newspaper. I have been told by attorneys that we accept liability for the posts if we edit them. But, if we ignore them and just permit them to be posted, we do not have liability.
We are struggling on what to do with all these hate postings coming on our posts. I would have to hire another full-time person to monitor all the posts and comments that come our way. But I am being told that if I just let them flow, I cannot be held liable for the crazy things they are saying. (As a reminder, you can’t ban posts on Facebook. We can and do on our own digital site, but not on Facebook). Is that correct?
A. You are correct. Once a website host starts editing or removing comments, they run some risk of losing their CDA immunity. I have received this question from other members. My advice is to add language that might in some way distance you or lessen the impact of the Facebook comments that you have no control over. This language may be particularly helpful where you publish online sensitive stories about public official investigations, which can generate a lot of backlash and negative/nasty comments, from Facebook readers, in particular.
Specifically, you might post something like this along with the link- “The [newspaper] commits to fair and fact-checked reporting in news stories; we do not, however, endorse or fact-check comments posted by our readers on our Facebook page. For the facts, read the story.”
Q. My firm has been retained by our insurance client to represent a local newspaper and its reporter in the attached lawsuit filed by a jailed pro se plaintiff. As you can see, the plaintiff filed this action for libel, slander and defamation related to an article (attached to the complaint) published by my client. We believe this claim to be frivolous. Do you have case law at the ready to include in our Motion to Dismiss the Complaint. Any help from you in this regard would be very appreciated.
A. I agree the complaint appears to be frivolous. My thought was that various case law and commentary on the fair report privilege might be helpful but I do not have any specific cases that I have researched regarding this matter. Here are a few links that might be helpful. Please don’t hesitate to call if I can be of any further assistance or if you have any questions. https://www.dmlp.org/legal-guide/fair-report-privilege; http://www.dmlp.org/legal-guide/florida-defamation-law; https://www.floridabar.org/news/resources/rpt-hbk/rpt-hbk-11/; https://lawpublications.barry.edu/cgi/viewcontent.cgi?article=1004&context=barrylrev
Q. We are looking at going with some new software and it will provide us with an affidavit with a text copy of the legal ad that appeared on the requested publication date. My question is there anything that says that it has to be a replica of what was published in the newspaper? Can it be just the text? Please advise
A. I think the following language contained in the uniform affidavit form, requires a copy of the actual notice not just the text. The section 50.051 oath language affirms that “that the attached copy of advertisement…was published in said newspaper.”
Q. I’m back with another question related to public notice qualification in Florida. Is a newspaper required to have a physical office in the city/county/state in which they publish to qualify for public notices? I do not see anything in Florida law related to a physical/known office requirement, but I thought I’d check with you.
In 403.5363, related to transmission line permitting, where a notice must print in newspapers of general circulation, it details a general circulation newspaper as “the largest daily circulation in that county and has its principal office in that county. If the newspaper having the largest daily circulation has its principal office outside the county, the notices must appear in both the newspaper having the largest circulation in that county and in a newspaper authorized to publish legal notices in that county.” It appears even with this notice type, our Florida notices would not be excluded.
Are you aware of anything?
A. Chapter 50 refers to newspapers being “published” in a certain county, however, that term has been construed quite broadly. Specifically, several cases and AG opinions have said that “published” means published only in a general sense. In other words, the newspaper does not have to have its office there (or be initially distributed or printed in that particular county). Rather, these cases say that “publication” only requires that the newspaper be “disseminated,” “made available to the public,” or “circulated.” See AG 74-125.
That said, some government actions do have more detailed requirements than those found in Chapter 50. The transmission line siting law that you mention is a good example. It spells out that if the largest circulation newspaper in the county has its “principal office” outside the county impacted, the notice must appear in both the largest circulation paper in the county and in a newspaper authorized to publish legal notices there. So, for example, if a line runs through a rural county that has a large circulation newspaper with no office in the county, then the notice must also run in the perhaps smaller local county paper that is authorized to run notices there.