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The Law and the Internet: Beware
Caruso is the Digital Commerce columnist for The New York Times.
The Internet has redefined the practice of journalism in the "90s. After an initial knee-jerk of technophobia, reporters and editors everywhere have assimilated e-mail messaging and scouring the World Wide Web into their daily routines. As a result, not only have they radically changed how they communicate with each other and with their sources, but they have also increased the amount and breadth of research they do for their stories, and vastly expanded the reach of their work as it is instantly distributed around the globe.
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But despite these advances -- and sometimes because of them -- critical legal issues are being raised that profoundly challenge the foundations of journalism, as both news reporters and the news itself continue their inexorable march into cyberspace. Those issues include:
WHO'S A JOURNALIST?
The First Amendment includes neither a definition of journalism nor guidelines about who may be considered a practitioner. In cyberspace anyone can claim to be a journalist, or at least a publisher, creating his or her own publication and distributing it around the world with a single keystroke. And like it or not, the operators of thousands of one-man or garage-band news sites on the Web are, by federal law at least, considered "real" journalists just as much as staffers for mainstream news organizations.
Says Roberta Brackman, vice president of program content and intellectual property for NBC in New York: "There are not going to be new definitions of journalists. Journalists who research and write, whether for online, print, or broadcast, should be entitled to all the same protections and potential liabilities. The First Amendment has been, and will be, applied equally."
Thus Matt Drudge, proprietor of the notorious Internet gossip column The Drudge Report, is as legally accountable as News Corp. or Time Inc. for what he writes and distributes. Lately, for example, he has been sued by Clinton aide Sidney Blumenthal for publishing allegations from anonymous sources that Blumenthal was a wife beater. He retracted the story immediately, but Blumenthal proceeded with the suit. (See "Is AOL Responsible for Its Hip Shooter's Bullets?" CJR, November/December.)
SWIFT RETRACTIONS MAY REDEFINE LIBEL
The willingness to publish a retraction is often a key element in whether a publisher can be sued for libel, but retraction statutes that protect journalists vary widely from state to state -- and "state" is a geographic distinction that does not exist in cyberspace. One problem is that some states may interpret the word "retraction" too narrowly to include online reporting and publishing. For example, an appellate court in Wisconsin found that its retraction statutes do not apply to messages posted on electronic bulletin-boards or forums -- such as America Online -- where individuals can "publish" messages at any time of the day or night.
Says Brackman: "The language in the Wisconsin statutes talks specifically about periodicals or magazines, and about being published in something that appears 'at regular intervals.'" The finding meant that in Wisconsin, at least, someone offended by a story or message published online could file suit without first asking for a retraction. Thus many legal experts expect the Blumenthal v. Drudge case to set a precedent for American libel law and publishing rights online.
According to Mike Godwin, staff counsel for the Electronic Frontier Foundation, a civil liberties organization in San Francisco, the negative effect of Drudge's online story "was almost certainly erased by subsequent online and traditional press coverage of the retraction." Brackman agrees. "The fact that Drudge went back the next day and [retracted] ought to have an impact on Blumenthal's ability to succeed. That's where online provides an unparalleled opportunity. You can make corrections on a moment's notice. If we correct our mistakes in a reasonable and timely matter, the law will have to find a way to accommodate that."
RESTRICTING ACCESS TO INFORMATION
As this story goes to press, the Clinton administration is pressing hard on Congress to pass an updated and profoundly restrictive copyright law for the age of the Internet. Called the "World Intellectual Property Organization Copyright Treaties Implementation Act," the WIPO bill would give big media and software companies -- represented by the U.S. Patent & Trademark Office, which wrote the proposed law -- the legal muscle to protect their property from unpaid electronic distribution, ostensibly by pirates who want to resell it. But the WIPO bill goes much further than that. It also has the potential to bar access to all kinds of information now available -- for free -- to journalists, scientists, researchers, librarians, and ordinary citizens under "fair use" provisions of the existing Copyright Act.
Fair use describes the circumstances under which someone can excerpt others' copyrighted work without having to pay them. It is by far the most critical component of copyright law for journalists, allowing them to cite information from books, magazines, movies, and virtually any other form of copyrighted information.
"That's the ultimate purpose of copyright -- to promote knowledge and discussion," says Pamela Samuelson, an intellectual property law specialist at the University of California, Berkeley. But this concept often runs counter to the goals of large copyright holders.
The most profound implications of the administration's current proposal are likely to come from its provision for what is called "anti-circumvention." Let's say, for example, that a drug company has decided it will distribute information about its controversial AIDS drug only online -- and then only for a price. It uses a technology called "copy-protection" to ensure that only people who pay a fee can unscramble and read it. If the Clinton administration's proposal becomes law, anyone who tries to crack that barrier -- journalist or ordinary citizen -- is breaking the law, even when the information itself, by law, should be made available for fair use.
Such a law has the potential to stop the flow of information dead in its tracks. Says Julie Fenster, vice president for law and business affairs of Time Inc. New Media: "Obviously we are creating enormous amounts of copyrighted materials every day, and of course I want to protect it. If someone is misusing or making money off what we create, then we try to stop it. But I'm scared that eventually there may be no fair use. Journalists may not be able to get at information without paying someone."
