When you start publishing online you move from the well-thumbed areas of defamation and libel, contempt of court and privilege and privacy to a whole new world of laws and licences.
This is a place where laws you never knew existed can be applied to your work – while other ones can come in surprisingly useful. Here are the key ones:
1. Copyright and ‘public domain’
You may already know your own rights regarding copyright – but what about the rights surrounding images and other content shared by other users across the web?
Even experienced sub editors have shown themselves to be ignorant of the difference between material that is ‘in the public domain’ and that which is ‘public domain‘ content. Read more about the differences in Finding images and multimedia for your news project (without breaking copyright laws).
2. Creative Commons and open data rights
The same post also covers the more positive aspect of Creative Commons licensing, which allows you to find and use content quickly and with confidence.
Images, audio, video, text and other media with Creative Commons licences allow you to establish whether you can use that media, and how.
What’s more, the Creative Commons site’s own search facility allows you to find such material across a range of websites.
Creative Commons isn’t just a legal issue when finding content too – it can be an important factor in distributing it.
Adding a Creative Commons licence to your own content can help introduce it to new audiences and facilitate collaboration and the creation of new material.
The ebook The Power of Open has more detail on how some individuals have used Creative Commons – and it’s published under a CC licence too, naturally.
On another front, open data licences provide the same facility for establishing rights surrounding data.
In the UK, for example, the Open Government Licence – based on Creative Commons – makes the re-use of government data simpler and clearer than had been the case with Crown Copyright.
For other countries, the Open Knowledge Foundation offers a guide to open data licensing, plus a series of licences you can use with any data you might publish.
3. Database rights
The ugly cousin of copyright is Database Rights – the rights held by an organisation or individual who has invested significant resources in compiling data.
New information-gathering techniques such as scraping require an understanding of those rights: the scraping itself isn’t a problem - but if you are planning to publish all the data scraped then the rights-holder may have a case against you.
A good analogy is a telephone directory: you can publish a phone number without infringing on the database rights of the person which compiled them. And you can use dozens of phone numbers to pursue a story without any problems. But if you want to publish all the numbers then you need to think about whether someone is likely to successfully pursue you for breaking the database rights.
As an aside: the scraping itself may breach the terms and conditions of a website. In practice these are rarely enforced with relation to scraping, but you still need to factor the possibility of being banned from the site into your plans.
4. Discrimination and hate speech laws
As we become increasingly not just journalists but publishers – of content by other people as well as ourselves – we also become responsible for the content published by those people on our sites.
Broadly speaking the guidance is that you are only liable for third party content once you are made aware of it – but once a legally problematic comment is brought to your attention you still need to know how to act.
This isn’t just about defamation. Of new relevance here in the UK are a number of laws forbidding expression of ‘hate speech‘ online:
- The Public Order Act 1986 covers comments which stir up hatred based on nationality, colour, and ethnic origins;
- The Crime and Disorder Act 1998 covers incitement to ethnic or racial hatred.
- The Racial and Religious Hatred Act 2006 relates to stirring up religious hatred;
- The Criminal Justice and Immigration Act 2008 deals with inciting hatred on the basis of sexual orientation.
- And the Communications Act 2003, specifically Section 127 – covers “grossly offensive” messages, a term broad enough to include a worrying range of discussion for publishers.
Then there are laws on “encouraging or assisting a crime” under the Serious Crime Act 2007.
In addition, if someone claims that they are being harassed on your website, and that harassment is sexual in nature or based on gender, sexuality, disability, age, pregnancy, race or religion, you will need to know about the Equality Act 2010.
Where material published on your site that comes under any of these categories is brought to your attention, knowing about these laws at least helps you make a decision about them. If that decision is removal, this will also help you inform the contributor of the legal basis behind the decision.
5. Data protection
Another law that becomes relevant in the transformation from journalist to publisher and in the context of new information gathering techniques is the Data Protection Act 1998.
This is likely to cover information gathered on users who register on your site, but not those who complete online surveys (there is an exemption for information gathered for journalistic purposes). I write about this in the chapter on law in the Online Journalism Handbook – here are the key points:
“The Act requires that you use information only for the purposes for which it is gathered, and only for as long as it is needed …
“In practical terms this means that when you gather information you should be clear about what it is to be used for and how the user can gain access to information held about them.”
Even if you don’t collect data on individuals yourself, the Data Protection Act is also a great tool if you or a source want to get hold of data held about yourself. Here Heather Brooke talks to me about using the act as a journalist:
6. Harassment and stalking
The same chapter includes a section on the use of The Protection From Harrassment Act 1997 to prevent journalists on reporting on particular individuals:
“Defences to a charge of harassment include if you were undertaking actions for the purpose of preventing or detecting crime, or that your conduct was “reasonable” in the particular circumstances. The fewer the incidents, and the more spaced out the instances of those, the weaker the case. If you have complied with an internal code of conduct with regard to privacy and fairness this will also help you.”
Laws on stalking have also been used in a similar way – more here.
7. Freedom of Information
Too much teaching of media law focuses on what you can’t do. But if there’s one law you should read up on, it’s your country’s Freedom of Information act (if it has one).
This sets out what rights you – and your site’s users – have to access information held by public bodies such as councils, police authorities, health bodies and national government departments.
Don’t just read about the law itself – read up on the judgements (“decision notices“) by the Information Commissioner’s Office and mention those in your requests where relevant.
Heather Brooke‘s Your Right To Know is an essential reference on using FOI, while the more recent FOIA without the Lawyer from Montague Amin of FOI specialists Request Initiative adds some great tips on how to improve your chances of a successful request.
From journalist to publisher to host – what next?
These are just 7 areas where journalists’ involvement in hosting, gathering, and requesting content has opened up new areas of law – while other laws are being used in new ways to prevent journalists pursuing a story. I’ve no doubt missed other laws – if you know of other examples please let me know.