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OLEMISS / Journalism and Mass Communications / COMM 371 / What are the three basic concepts of american privacy?

What are the three basic concepts of american privacy?

What are the three basic concepts of american privacy?

Description

School: University of Mississippi
Department: Journalism and Mass Communications
Course: Communications Law
Professor: Charles mitchell
Term: Fall 2016
Tags: mass, Media, and Law
Cost: 50
Name: JOUR371 - Test 3 Study Guide
Description: These notes cover all of chapters 7-10. I did my best to organize all of the information, and define it all in the simplest way possible!
Uploaded: 03/19/2017
29 Pages 14 Views 5 Unlocks
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JOUR371 Test 3 Study Guide MITCHELL


What are the three basic concepts of american privacy?



Chapter 7: Invasion of Privacy: Appropriation and Intrusion

● 3 basic concepts of American privacy b​ ased on the notion of control​: ■ Autonomy​ - private and personal decision making​ by an

autonomous individual, free from government interference and intrusion​; usually in the context of profession, procreation, health, personal relationships, etc; self-determination​ (ex: Roe v. Wade)

■ Space​ - a physical zone of privacy​ into which others may not intrude or trespass; a private (not public) location from which the legal standard “reasonable expectation of privacy” may be rooted; the right to seclusion​ (ex: individual's territorial solitude)


What refers to private and personal decision-making by an autonomous individual?



■ Information​ - some facts and data about oneself that should not be revealed eit ​ her to or by others (ex: medical records)

○ The right to privacy is a personal right, available only to humans​. Organizations​ – businesses, universities, nonprofits – have information that can be shielded​ from the public, but not as a “right to privacy” matter. It is important to differentiate between whether the invasion of privacy is by the government or by a private entity. Usually, people are more concerned when the government is “snooping”​ and are much less concerned about private information gathering​. Why? Sometimes we benefit from private information ga ​ thering (Kroger Cards, for example, keep track of what you buy and eat so long as they disclose how the information is being used, but you also get discounts as a result!) ○ General rules for the government to follow:


What is the right to privacy?



We also discuss several other topics like What are the methods to test infant perception?

■ When the government is collecting information on individuals, it must be justified​.

■ The interest of society​ must override the interest of the individual. ■ Balancing tests​ may ensue to assure the government is not taking advantage of its powers to intrude on people’s privacy.

○ NOTE: The right to privacy is an ever-evolving concept in American society. It has developed into the backbone of marketing:

■ 60 years ago hospitals routinely published lists of who was in the hospital and why. Today, medical information is highly personal and is confidential by statute. If you want to learn more check out How does observational learning affect behavior?

■ Google has access to who you email and who emails you through Gmail. Amazon knows what you like to buy and when you prefer to buy it. Kroger knows what food you eat and how often you eat it. AT&T knows who you call and text, and who calls/texts you. Marketers use this personal information of yours to target you with advertisements and to perform marketing research. Most people don’t mind about this intrusion on our privacy, because we’re often rewarded with discounts, promotions, etc as a result.

● Primary Sources of Privacy Rights in America:

■ Constitutional law​ - there is no specific mention of a “right to privacy”​ in the Constitution or Bill of Rights, but it can be We also discuss several other topics like Do gas particles collide with one another and transfer energy?

accredited to judicial activism​ or the aggregation of a variety of rights​ with the general implication of ​ “being left alone” by the government ​in the Bill of Rights We also discuss several other topics like What did the treaty of versailles in 1919 do?

● State governments began to make laws over matters that

some people deemed too personal for government

interference, so people took it to court, resulting in the

privacy policies we have today.

○ Griswold v. Connecticut (1965) Contraception was

illegal in Connecticut.

○ Roe v. Wade (1973) Obtaining an abortion was illegal

in Texas.

○ Bowers v. Hardwick (1985) Homosexual acts were

illegal in Georgia (upheld)

○ Lawrence v. Texas (2003) Homosexual acts were

illegal in Texas.

○ Obergefell v. Hodges (2015) Ohio did not sell marriage

licenses to same-sex couples. (equal protection)

● 4th Amendment: p​ rotects privacy from unreasonable searches and seizures in homes

■ Statutory law​ - provides protection from privacy violations b​ y both government and private entities. Don't forget about the age old question of What theory suggests we seek out and maintain relationships in which the rewards exceed the costs?

● Family Educational Rights and Privacy Act (FERPA​) - relatively new law that treats the privacy of academic records lik ​ e that of medical records

○ Does not create a private cause of action.​

■ Ex: If someone’s academic information is released

by a university, the victim whose information

was released cannot sue for personal damage.

Instead, the institution/university would end up We also discuss several other topics like What kind of harm can free radicals cause?

losing federal funding.

○ Only allows the release of “directory” information like awards received and honor roll titles, etc.

■ However, FERPA even supplies the opportunity

for people to block even this directory

information from being shared with the public

● Health Insurance Portability and Accountability Act (HIPAA)​ - the doctor-patient confidentiality law; applies only to healthcare providers

○ Only allows the release of “directory” information like whether the patient is in stable/critical condition, etc. ■ However, HIPAA even supplies the opportunity

for people to block this directory information

from being shared with the public

● Children’s Online Privacy Protection Act (COPPA​) - makes it illegal to direct market to or harvest marketing information from people under the age of 13

■ Common law​ - protects Americans from…

● The intrusion upon the plaintiff’s physical solitude​ or seclusion

● Publicity which violates the ordinary decencies

● Putting the plaintiff in a false, but not necessarily defamatory position in the public eye (false light)

● The appropriation of som ​ e element of the plaintiff’s

personality for a commercial use.

■ Administrative law - usua ​ lly come as a result of consumer complaints; if people think their information is being gathered and used too aggressively, they ask elected representatives to protect them

● Federal Trade Commission​ (FTC​) - uses law enforcement,

policy initiatives, and consumer and business education to

protect consumers’ personal information​ and ensure that

they have the confidence to take advantage of the many

benefits of the ever-changing marketplace

● Consent - ​the major defense to an intrusion of privacy claim; can be expressed by a signature on a consent form or can be implied b​ y showing that the plaintiff knew the purpose and did not object; those who voluntarily place information before the public do NOT have a basis for filing a violation of privacy case

○ Some people don’t have the legal capacity to give consent​: ■ Minors (under 18)

■ Mentally ill

■ Incarcerated people

○ Adequacy of Consent/Informed Consent​ - describes the request of an individual for someone else’s consent, and to what degree the action was explained​ before consent was given; a judge has the burden of determining whether consent was informed or not adequately informed; plays a big role in the medical field where patients must understand the risks and benefits of treatment; when downloading an app, do you typically read every word of the consent page? Does anyone?

○ If an image is substantially altered​, for example, if you consent to having your picture taken but the publisher photoshops you to look like a witch, then the consent can be voided a​ nd you can file a lawsuit.

○ Usually these cases arise when a person does not know that they’ve given consent​ or when they discover that “private” information about them was actually public information.

■ Example: Suppose Bob has skin disease, a severe case — and frequently Googles “psoriasis relief” and other, similar terms. Bob may be surprised when he gets an email with a coupon for a

medicine for psoriasis. He might be aghast to discover that he has actually put online what he considered to be personal, medical information for ad companies to harvest. And it could go on from there. Suppose Bob applies for a job as an airline pilot and a

background check reveals he is a member of a Psoriasis Sufferers Group Page. Psoriasis is not debilitating, but another applicant who doesn’t have psoriasis may get the job. Bob would never know he was discriminated against (perhaps illegally under the Americans with Disabilities Act) based on Google searches he had initiated. However, since he didn’t know his search terms were telling

anyone about his medical condition, a judge might consider his case to have a reasonable expectation of privacy.​

● The 4 Torts of Privacy Law​: Appropriation, Intrusion, Public Disclosure of Private Facts, and False Light; if every element of a tort is not represented in a case, there is no tort to file a lawsuit on.​

○ Appropriation​ of​ someone’s name or likeness​ for commercial use -

■ The three elements of this tort are:

● (1)Appropriation - t ​ o take something without permission

● (2)Name or Likeness - a ​ defining characteristic of an

individual such as their face, name, voice, etc

● (3)For commercial use​ - in order to make money off of it

■ There are two classes of people (famous/nonfamous) that this privacy tort can apply to, and each are treated very differently ● Famous people​ - their names/voices/faces hold a monetary value​ and thus have a property interest called Right of

Publicity;​ when this is infringed upon, celebrities consider this

to be theft​; Right of Publicity is upheld even after the

individual dies

○ Right of Publicity - t ​ he right to control the commercial exploitation of a person's name, image or persona. ■ If someone pays Kim Kardashian to have her picture on the side of a bus and she agrees to it,

the bus company/advertiser has a right of

publicity to use it.

■ Because a right of publicity is “property” it can be sold or inherited just like a ring or a car. This is

why Elvis and Michael Jackson have made

millions more annually since they died than

when alive.

○ If a celebrity’s image or likeness is used without permission​ or payment, this is against the law.​

■ Say you live in Taylor, Mississippi and sell

fast-food burgers. Even though you have an

abstract reason for calling your restaurant Taylor Swiftburgers, it would be hard to argue that the relative value of Taylor Swift’s name didn’t

benefit your business.

■ Example: When a grocery store published a

congratulatory note to Michael Jordan’s success in 2009 in Sports Illustrated, they included a

coupon for steak. Since they used his image to

promote sales without his permission, they were

sued for $8.9 million.

● Nonfamous people - h ​ ave a right to not be exploited​; must have been embarrassed or hurt emotionally;​ no damages can be upheld after the person dies​ because they cannot still be affected emotionally and their name does not hold any commercial value

○ Say a picture of your non-celebrity deceased mother somehow shows up on the back of a bag of flour. Since emotion isn’t inheritable (in terms of law), there is no basis to file a lawsuit.

○ If someone took a picture of your face, enlarged it, and put it on the side of a bus without your consent,

resulting in the whole town calling you “bus girl”,

you’d have a case based on stress/embarrassment. If

you were unrecognizable in the photo, you would

have no basis for taking action.

○ Ex. In Mississippi a few years ago, Abileen (a

character in the movie “The Help”, and also a real

person) sued someone over the appropriation of her

name/likeness in the popular film.

■ Exceptions for the media:

● News exception/exemption​ - when someone’s

name/face/voice is being used for the purpose of public information and spreading news, consent is not entirely necessary

● Incidental Use - Sa ​ y you attend a concert and the band takes a photo of the crowd to publish on a poster for their upcoming tour. You were wearing your very noticeable sparkly shirt, but your buddy’s arm is covering up the upper half of your face. You may be embarrassed that you’re on all the posters, but since you’re not identifiable, you cannot file a case.

● The Booth Rule ​- provides fairly broad protection to the news media by allowing celebrity stories and images to be published as news without consent; an aspect of the news exemption and incidental use; states that the media can publish a newsworthy photo/quote/etc of a celebrity, and then republish it later for promotional/commercial use

○ Ex: Mick Jagger’s cover of Rolling Stones was very popular when it was published. Under the Booth Rule, Rolling Stones is able to republish Mick Jagger’s cover to promote their magazine subscriptions.

○ Intrusion upon an individual’s solitude(seclusion)​ ​- ■ How the information was obtained matters more​ than if the information was published

■ If someone infringes upon a reasonable expectation of privacy​, there is an intrusion offense - no matter if the information was published or not.​

● Wiretapping cell-phone calls - Cell phone calls come with an expectation of privacy, so if an individual has the technology necessary to illegally tap into someone else’s phone, the

Electronic Communications Privacy Act (ECPA​) says that this is an intrusion of seclusion, and is therefore actionable by a plaintiff

■ How do we know if a reasonable expectation of privacy exists? ● “Newsworthy” for the media does NOT apply in intrusion cases, because it does not have to do with publication, only the actual collection of information

■ Things that anyone can see or hear​ are NOT considered to fall under a reasonable expectation of privacy

● Citizen Journalism​ - since nearly everyone owns a

smartphone nowadays, citizen journalism is becoming very popular. People can film, report, and publish events within seconds of their occurrence; biggest controversy in citizen

journalism: people recording the actions of police officers

when they’re doing their jobs (this is a protected right of the individual, as long as it’s recorded in a public space, but

officers complain that these bystanders can be detrimental to their work)

● Stealth Journalism​ - refers to the use of hidden cameras and recorders in order to obtain information; legal to use in​

media work, but is frowned upon​ and has a set of rules to keep things ethical:

○ Rules of Stealth Journalism from the Poynter Institute:

■ Used only when sought-after information is

profoundly important.

■ Used only when all other alternatives have been

exhausted.

■ Used only when the benefit to society outweighs

the harm to the individual being recorded.

■ Used only when all hands are clean (no

malicious activity is taking place on the

recorder’s part)

■ Used only after discussion with other media

practitioners results in a confirmation of

appropriateness

○ Example: A woman got into a car wreck and someone

filmed the scene while she was being put into an

ambulance. The video was published on the news, and

was therefore not an intrusion upon her privacy

because she was out in public. However, when she was

in the ambulance, her conversation with the nurse was

recorded and later published as news. Since this was

not within a reasonable expectation of privacy, the

woman would be able to file a lawsuit on invasion of

privacy.

Chapter 8: Publicity About Private Facts and False Light ● The 4 Torts of Privacy Law (Cont’d)​: Appropriation, Intrusion, Public Disclosure of False Facts, and False Light; if every element of a tort is not represented in a case, there is no tort to file a lawsuit on​.

○ Public Disclosure of Private Facts (Keyhole Journalism)​ - the publication of private information that would be highly offensive to a reasonable person but has NO legitimate public interest; d​ amage is not measured by an injury to reputation (like with a libel), but instead damage is measured by the disclosure of privacy

■ Elements of the tort “Public Disclosure of Private Facts”:

● (1)Public Disclosure - p ​ resented to a mass audience

● (2)Private Facts​ - information that is NOT held in public

records or databases

○ A fact isn’t private if it has ever been public; time is irrelevant

■ Ex. You can’t consider something you said 40 years ago in your testimony on trial to be

private information.

○ Information that is in public records can never be considered private information - even if the plaintiff doesn’t realize​ what facts are on public record

■ One case that has generally been an exception to this element (therefore making it

unconstitutional) is in the case of protecting the identities of rape/sexual-assault victims

● Is being a victim of a sex-related crime a public fact? Historically, people have

thought rape victims were “damaged

goods” and that they “asked for it”, so

shield laws protected their identities as

private information,​ and media

practitioners had to comply.

● Some shield laws state that the

government (police or otherwise) can not

disclose the names of the victims; other

shield laws prohibit the publication of the

victims’ names; Mississippi still has a

so-called rape shield law that keeps the

victims’ identities protected from the public;

all of this is most likely unconstitutional.​

● Today, media practitioners generally

follow the rule to “only record/publish the

victim’s identity if the victim chooses to

do so”, ​which still conforms to the shield

law school-of-thought, although rape is a

crime a​ nd it has nothing to do with

passion/romance and “deserving it”; it is a

crime of the same caliber as manslaughter

and murder

● (3)Highly Offensive to a Reasonable Person - s ​ ince whether something is “offensive” is subjective, a judge must determine whether the disclosure of information would be offensive to a “normal” person; it doesn’t matter what the plaintiff is sensitive to or what they would prefer to keep private

○ This means that someone can go to court with the publisher of legally obtained, truthful information, as long as “normal” people agree that this information was generally considered to be private

○ Difficulties: judge/jury has to decide whether the individual is “reasonable”

■ Ex: One celebrity enrolls her child in a school

known to serve students with learning

disabilities, but considers her child’s

educational/medical condition to be very private. Another celebrity enrolls his child in the same

school and is a big advocate for education for

students with learning disabilities. Someone in

the media finds out and publishes a story about

both children. One celebrity might not care, and the other cares a lot. Which parent is

reasonable?

● (4)Legitimate Public Interest​ - society’s need/desire to obtain certain information; can also be subjective, so it’s left up to the judge to decide

○ Difficulties: judge/jury has to decide whether the public has a need/desire to know the information

○ This is what makes this tort so rare; courts don’t like determining what is important for the public to know.​

■ Ex: (Above) Is there a “legitimate public interest” in whether or not the public should know about

the celebrities’ children enrolling in a school for

kids with learning disabilities?

○ However, if certain information is avoidably included in a publication just for the sake of “spicing up” a

story​, this would definitely NOT be of legitimate

public interest and the tort would be upheld

■ Sometimes people’s exposure in the media is purely incidental -​ they can lose their privacy whether they want to or not; in some cases, this invasion of privacy is not actionable

● Ex: Someone has an affair while their spouse is out of town. The candles around the hot tub catch the house on fire, and the people’s names and identities, as well as the house

address, were reported on the news. The privacy of the

spouse that is out of town is incidentally exposed by the

nature of the situation, and a public disclosure of private

facts lawsuit would probably NOT win in court.

○ False Light Invasion of Privacy (libel-lite) - ​very similar to a libel case, except it doesn’t have to cause injury to reputation.​ ..it only has to embarrass som ​ eone; a plaintiff has been put in the public’s eye in a false light​ that would be offensive to a reasonable person a​ nd the publisher was at fault

■ Difficulties: deals with publishing legal and truthful information, and can be subjective

● Ex: Bob was arrested in 1999 for robbery and is found

innocent. In 2007, Bob was arrested again and his report

mentioned his prior arrest but did not include the fact that he was found innocent. All information published was true, but it left Bob in a “false light” in the public’s eye.

■ Usually arises from a complaint about a publisher overreaching for interesting story elements

● Ex: A photographer takes a picture of a brother and sister sitting together in the Grove and later publishes the photo with the caption “Spring is the time for romance”. There is no

false statement of fact, but this would be pretty embarrassing

to the siblings. This is a result of sloppy journalism.

● Questions to ask yourself when analyzing a scenario: ○ Appropriation:

■ Was something used without permission?

■ Was it based on an individual, whether famous or not?

■ Was the individual recognizable (whether in a photo, or a voice recording, or as a cartoon, etc)?

■ Did the publisher receive (or intend to receive) commercial benefit? ○ Intrusion:

■ How was the information obtained? Did it infringe upon a reasonable expectation of privacy?

○ Publicity of Private Facts:

■ Was the information private?

■ Was it presented to a mass audience?

■ Would a reasonable person find it highly offensive for their information of this nature to be published?

■ Is there reason to think there is a legitimate public need to be presented with this information?

■ Was the publisher at fault?

○ False Light:

■ Was the information published?

■ Was the information necessary to the article published?

■ Was the individual left in a false light?

■ Would a reasonable person find the publication of their

information of this nature to be highly offensive?

Chapter 9: Gathering Information

● Media Practitioners in America:

○ Why do journalists and the media exist?

■ Politicians use t ​ he media to advance their agenda

■ Marketing specialists​ benefit greatly from “free media”

■ The government​ uses the media to inform the public on many issues

■ Sports/entertainment enterprises t​ hrive on media coverage

■ Individuals and societies have always and will always need

information (weather, dangers, trends, etc) to bring order in​ to their lives

■ They make money​! The more trustworthy content they provide to society, the more customers they obtain.

○ Who/what is a journalist?

■ In legal terms, journalists are just regular citizens of our ​ country. ● There is no constitutional right of access t​ hat the media has

that other citizens do not

○ For example, if a journalist asks you for information,

you do not HAVE to give it to them.

● However, the media does have a special place in society -

there’s a press room at the White House, press boxes at

sporting events, etc. This special access is NOT governed by

any operation of law.​

○ The First Amendment “Freedom of the Press” b​ asically

states ‘publish what you want; we have no obligation

to help the media more than anyone else​.’

● On the flip side, media organizations can NOT be

singled-out and excluded​.

○ A journalist has the same legal right as anyone else to

be in a public place. There is no legal basis for

declaring a “media free zone” in any public venue​.

■ For example, the mayor of Oxford cannot

prohibit a journalist’s access to an open city

council meeting, just because the mayor doesn’t

like the media organization. A First Amendment

argument could be made in this case, on behalf

of the journalist.

■ Shield Laws​, however, (exist only in some states) give journalists advantages over regular citizens​, such as expediting journalists’ requests for information

○ What can and can’t journalists do?

■ Since media practitioners are just citizens, they’re as answerable to criminal and civil laws as anyone else​.

● Trespassing​ - the intentional, unauthorized entry onto a premises that is lawfully occupied/owned by another

individual; includes indoor and outdoor areas

○ Technically, an individual is not trespassing until the owner asks him/her to leave

○ Ex. If the mayor of Oxford rents out a conference room at the Holiday Inn for a big private event, he “owns”

the room and is able to include/exclude any individual

he wants to. If he tells someone to leave - and they

don’t - then that person is trespassing.

○ Ex. The mayor holds a permit to host an outdoor event in a public park and requires attendees to purchase a

ticket to enter the area. Even though it’s outdoors, the

mayor can exclude the media from the area since he

“owns/is renting” it. However, anything that can be

seen or heard from off the premises is considered to be

“in public” for which the mayor could NOT take

action.

● Harassment​ (Stalking)​ - the use of aggressive pressure or intimidation to influence an individual; also, the

hounding/stalking of an individual that does not wish to be contacted

● Fraud (deception)​ - knowingly making a false statement to a person with the intention of having that person rely on the statement to his/her detriment

● Failure to obey lawful orders - m​ edia practitioners must comply to all the laws that a regular citizen must comply to ○ Ex. Police officers at a crime scene may make an order for bystanders (including the media) to “move back” in order to preserve evidence and protect public safety. Media Practitioners have no supremacy over the police or other bystanders and would have to follow the police’s orders.

○ NOTE: authorities will often assist the media (in terms of providing credible sources of information) if they’re asked nicely.

○ The Musumeci Case​ - After 9/11, a law was enforced that prohibited photography of federal building entrances, in order to guard against terrorists

planning attacks​. This law, however, was an

unconstitutional overreaction.

● Use of audio recording devices -​

○ Most states (including Mississippi) are known as “one-party states”​, meaning that as long as one person in a conversation knows it is being recorded,​ then the recording is lawful.

○ “Two-party states”​ require that everyone being recorded knows that the conversation is being

recorded;​ usually a notice will be posted stating that audio recording is in process.

○ It is NEVER lawful to record a conversation between 2 or more people that do not know they’re being recorded. Th ​ is is called wiretapping, w​ hich does not involve privacy tort issues like seclusion or the

disclosure of private facts.

■ Ex. There is a closed-session meeting at the town hall, where the media is not authorized to attend. By leaving your purse in the room with your

phone “record” function enabled, this is unlawful

and is considered to be wiretapping because no

one in the conversation knew it was being

recorded.

● How private is government information?

○ Federal Freedom of Information Act (FOIA) - a ​ law that gives you the right to access information from the federal government;​ often described as the law that keeps citizens in the know about their government​.

● FOIA does NOT apply to Congress or Federal Courts

○ Congress makes its own rules, but, generally speaking,

sessions are very public.

○ Courts​ also make their own rules, but are

constitutionally required to operate in the public.​

Courts speak through written orders that are public

records.

● It’s based on the democratic principle that an informed public is essential and citizens have a limited right to know how

public funds are being spent​ and how federal policies have

been developed.​

● FOIA keeps a public-access record of this government

information.

○ How much information is available to us and why

would a citizen be denied access to certain

information?

■ An essential test for measuring whether a

denial of access is valid​ is to ask whose interest

is served by non-disclosure​.

■ Protecting the government (or a government

official) from embarrassment is NEVER a

justification for ​ keeping information confidential.

Although that’s the reason for most access

denials, it can not be the legal basis of access

denial.

■ Denial of access to certain records must be in

the public’s interest​ (such as the blueprints for a

hydrogen bomb).

■ Who/what is exempt to providing information to FOIA? ● Personal and trade information (trade secrets)

● Military operations and national security information ● FERPA​ (Family Educational Rights and Privacy Act of 1974, AKA the Buckley Amendment​) - keeps academic

performance information private w​ ith the exception of certain directory information (Honor Rolls, Dean’s Lists, etc.) ○ FERPA’s exclusion in FOIA does NOT apply to law enforcement records;​ if a student is charged with a

crime, that information is on public record.

○ If an individual’s academic performance information is wrongfully disclosed to the public, the individual still does not have a basis for lawsuit​. The government

would instead punish the institution/university with a loss of government funding​.

● HIPAA ​(Health Insurance Portability and Accountability Act of 1996) - applies rules of confidentiality to individuals’ medical records

○ Formalizes/officiates Common Law’s doctor-patient privilege and extends it to all health care providers and other 3rd party individuals​ who may need access to the information (like insurance companies)

○ Creates a system of severe monetary fines t​ o those who violate HIPAA.

○ Individuals who receive medical treatment must fill out a HIPAA form, in which they can opt-out of even the disclosure of directory information

■ Ex. If Tiger Woods is seen being rolled into the

emergency room, and he opts-out of the

disclosure of directory information, then if the

media asks a nurse about Woods’ condition, and

she states that he was in critical condition,

Woods would have legal basis for filing a

lawsuit against HIPAA violation. She SHOULD

have stated, “We have no record of a patient by

that name.”

● What statutes are in place for protecting/disclosing state governmental information in Mississippi?

○ Mississippi’s Open Records Act - en ​ sures public access to public records in the possession of governmental entities in Mississippi; states that providing access to public records is a duty of each public body ■ Definitions:

● “Public bodies” - organizations whose work is part of the

process of government​, but is not a government department;

any department, bureau, division or agency of the state or a

political subdivision thereof, and any municipal corporation

and any other entity created by the Constitution or by law,

executive order, ordinance or resolution

● “Records” - ​ any documentary materials,​ regardless of form or characteristics, used in conducting public business; includes

e-mails, texts, video, audio

■ Rules defined in the Open Records Act:

● Any person may ask for records for any purpose​. You

shouldn’t be required to state a purpose or even who you are.

● If a public body is unable to produce a public record by the seventh working day​ after the request is made, the public

body must provide a written explanation

● Denial b​ y a public body of a request for access to public

records should be in writing and should contain a

statement of the specific exemption r​ elied upon by the

public body for the denial.

● Each public body shall maintain a file of all denials of ​

requests for public records.

● Each public body may establish and collect fees​ reasonably calculated to reimburse it for, and in no case to exceed, the

actual cost of searching, reviewing and/or duplicating and,

if applicable, mailing copies of public records.

● Any record custodian who denies public-access information to an individual or who charges an unreasonable fee for ​

providing a public record is liable for a personal fine of

$100 per violation​ of disclosure/non-disclosure, PLUS the

applicable fees that were to be collected from the requester.​ ■ Exemptions to the Open Records Act:

○ Health/medical information (HIPAA)

○ Academic performance reports (FERPA)

○ Investigative offense reports and other documents

containing witness statements, police radio logs, taped

communications or officers’ daily reports.

○ Reports of hunting accidents involving firearms -

National Rifle Association (NRA) wanted hunting

accident information withheld in order to protect gun

makers from lawsuits

○ Coroners’ reports/death records

● In general, all exemptions fr ​ om the Mississippi Open Records Act have public interest in mind​.

○ Mississippi’s Open Meeting Act - en ​ sures that all public bodies, state and local, (which are supported wholly or in part by public funds, or expends public funds) ​hold open meetings on public matters

■ What types of meetings MUST be open to the public? ● Any assemblage of members of a public body where the public body has supervision, control, jurisdiction, or

advisory power

● Examples include:

○ "Informal meetings" of a public body and its staff

(although no votes are taken by the public body's

members)

○ Luncheon meetings of a public body where

deliberation and discussion takes place concerning

matters within the public body's jurisdiction

○ Work sessions of a public body

○ Joint meetings of two public bodies

○ Local school board of trustees' visit to a public school

■ Exemptions to the Open Meeting Act: Who does NOT have to hold open meetings?

● Courts and juries

● Public and private hospital staffs, boards, and committees ● Law enforcement officials

● The military

● State probation and parole boards

● Worker’s Compensation Commission

● Legislative committees and subcommittees

● Meetings that happen by chance or those that are purely social gatherings

● Executive meetings

■ Executive Meetings​ - any public body may enter into executive (closed) session for discussing/voting on public business transactions​ such as:

○ Personnel matters

○ Prospective or actual litigation (the process of taking legal action)

○ Security personnel, plans, or devices

○ Investigations concerning allegations of misconduct or violations of law

○ Extraordinary emergencies posing immediate or

irrevocable harm to persons or property

○ Prospective purchase, sale or leasing of lands

○ Preparation of admission tests for recognized professions ○ Location, relocation or expansion of business or industry ○ Line item in a budget which might affect termination of an employee or employees, although all other

budget items must be considered in open meeting

○ Discussions between school board and individual

students, parents or teachers within the board's

jurisdiction regarding problems with the students,

parents or teachers

○ Any body of the Legislature which is meeting on

matters within that body's jurisdiction may go into

executive session.

● Executive Session/Meeting Procedures:

○ Minutes must be kept​ for all open and executive

sessions of a public body covered by the law; these

minutes will be on public record;​ the minutes must

include​:

■ What members are present and absent

■ The date, time, and place of meeting

■ An accurate recording of any final actions

■ A record, by individual member, of any votes

taken

■ Any other information that the public body

requests be included

○ All meetings must begin as open meeting​, even if the only matters to be discussed are topics exempted under the law.

■ Three-fifths affirmative vote of all members

present is required b​ efore a public body can go

into executive session.

■ The reason for executive session must be stated

in open meeting and recorded in the “minutes

record”​.

○ Meeting times​ are either set by government statutes or they’re stated in the prior meeting’s “minutes record”.

■ Special meetings may be held at other times, so

long as a notice is posted.

○ Audio/visual recording of executive meetings is

allowed​, unless it is intrusive.

■ What is the media’s place in the matter?

● It’s nearly impossible to fully enforce compliance with the Open Meetings Act

○ Ex. Two aldermen sit in the break room in the City

Hall and talk about where to build a new parking lot;

that’s technically a “meeting”.

● It’s up to media practitioners to make sure that public bodies

know that:

○ Openness is what people expect and is in their

interest.​

○ Discussions are relevant, n​ ot just votes.

○ All votes must be recorded a​ nd will be reported.

○ Executive sessions​, especially on personnel, must be

limited to the specific purpose for ​ why the meeting

was closed.

○ Some states have an ‘ultra vires’ doctrine that makes

any action taken in an illegally held or closed session

void​ or voidable. Mississippi does not.

○ Willful violations of the Open Meetings Act can result

in a $500 personal fine and $1,000 for repeat

offenses.​

○ The Mississippi Center for Freedom of Information has practical guides on requesting record access, w​ hile the Mississippi Ethics Commission is charged with overseeing compliance with the Open Records Act and provides opinions showing how the laws have been applied to requests.​

Chapter 10: Protection of Sources / Contempt Power / Anonymity ● Should journalists/media practitioners have to provide sources for the information that was gathered confidentially?

○ Two scenarios:

■ Journalists being ordered to provide evidence or testimony a​ bout knowledge of an event where the sources wished to remain

anonymous.

■ Journalists being ordered (or used) to identify sources​ that wished to remain anonymous.

○ This topic was especially relevant and controversial during the Nixon administration (1970s) and the Obama Administration, w​ hich resulted

in the Branzburg Decision​ which states that there is no “journalist privilege” that would protect a journalist’s sources in all instances. ​In other words, information provided to a journalist is not as “sacred” or “protected” as information provided to an attorney, priest, physician​.

○ Conflict of interests ​in determining whether journalists should be required to disclose confidential information upon request by a government entity:

■ Public interest in Justice​ - societies need order, need justice, and need people with relevant information to share it with government officials, including criminal prosecutors, who can do something about it. The fact that journalists are the same as all other citizens argues for journalists to be cooperative.​

● Ex. A journalist is driving home and notices a house fire, where he got out to videotape the commotion. The

homeowner decides to sue the city, saying that not enough firefighters were sent. If called to testify, the journalist would be required to provide a testimony​ of the event and even turn in the video he/she took of the fire, because - in this case - the media’s independence is not being compromised​ since the journalist was only a witness and any bystander’s video would have sufficed. The only goal of a good journalist is to seek the truth, anyways.

■ Public interest in Media Neutrality​ - journalists are most effective as neutral gatherers of information that is important and relevant to their audience. The First Amendment’s “freedom of the press”, guarantees that the government will not interfere with media practices​ (which contradicts the fact that journalists are “regular citizens”​).

● Ex. Campus media decides to do a story about students cheating on exams. The media interviews people who admit to cheating, saying “everyone does it”. Should the media be required to give the names of the people they interviewed to the administrators of the Dept. of Academic Dishonesty? No, b​ ecause their job was to report the truth, not get a bunch

of students in trouble. In this case, the media is being asked

to compromise its neutrality and lose its independence.​

● Are journalists required to appear in court to make a statement about an event that they reported on?

○ If journalists are issued a subpoena or a subpoena duces tecum - ■ Definitions:

● Subpoena​ - court order to appear and answer questions

under oath

● Subpoena Duces Tecum​ - a court order for the delivery of

certain materials such as notes notes/recordings to a court

hearing

○ Subpoenas and Subpoenas Duces Tecum must NEVER

be ignored - even by the media,​ and failing to tell

the truth while under oath constitutes the crime of

perjury​, a felony punishable by a prison sentence

○ If a journalist is subpoenaed to court, he/she MUST

participate.​

○ If journalists are NOT issued subpoenas -

■ If a journalist is asked to give a testimony in court, a 3-part test (Branzburg Test) w​ ill be applied (thanks to the First

Amendment’s “freedom of the press”) to determine whether or not their appearance in a civil​ court is required/necessary:

○ Is the information being sought from the journalist

relevant t​ o the case?

○ Does the information being sought from the journalist

critical in​ making a final case decision?

○ Is there no alternative​ source for the information?

● In criminal​ cases, the Branzburg test differs slightly from the test in a civil court case.

○ Is there probable cause​ to believe the journalist has

information that is clearly relevant​ to a specific

violation of law?

○ Is there another source that doesn’t involve First

Amendment infringement​?

○ Does the government have a compelling and

overriding interest in​ the information?

■ So what’s the point of the Branzburg test?

● The main reason it exists is to avoid “Fishing Expeditions”​,

where lawyers would issue subpoenas for reporters merely

to find out if they’d gathered information that would be

useful for their client. W​ hile journalists do have the option

to deny/comply or even charge attorneys for the information

they possess, the test requires attorneys to know whether

the journalist can provide relevant, critical information

beforehand. If the attorney can’t show a compelling need to

involve the media, then the attorney HAS to leave the

media alone.

● How can journalists avoid being called to make a testimony in court about confidential sources?

○ First of all, if a journalist is conducting an interview with a source, they should probably NOT make an offer of confidentiality​ unless they want to appear in court.

■ An offer of confidentiality should only be made to a source if: ● It’s an extreme situation

● The journalist has a high degree of belief that trustworthy

information will be provided (otherwise, you’re wasting your

time)

● It has been discussed with an editor or news director

beforehand and is agreed to be a good decision to accept a

confidentiality request or make an offer of confidentiality

■ Rule of thumb: If you, a journalist, would reveal the identity of a confidential source when ordered to do so by the court, the source should know that before you interview them.

● What happens if a journalist breaks his promise of confidentiality to a source? ○ If a source suffers as a result of a journalist breaking his/her promise of confidentiality, t ​ he source may be able to sue​ on a legal theory of Promissory Estoppel.

■ Promissory Estoppel​ - a legal principle stating that a “promise” is enforceable by law, ​even if made without formal consideration, when the promise is broken and results in harm to the

individual;​ it is intended to stop the promisor from arguing that an underlying promise that was made should be not be legally

upheld or enforced.

● Suing a journalist for promissory estoppel is not common, b​ ut it has happened before.

● What happens if a journalist refuses to disclose the confidential source’s information in court?

○ A judge would probably hold the journalist in contempt for failing to obey a lawful court order.

■ This is a bench ruling, which is sometimes subject to an evidentiary review, but always results in fines and possible jail sentences.​ ● Right to Anonymity -​

○ From a citizen perspective, the ‘right to free speech’ has never included a specific requirement of self-identify.​

■ The First Amendment says government shall make no law infringing on freedom of the press or freedom of speech. A law requiring a person to identify himself or herself, generally speaking, would likely be an infringement. There is, in other words, what appears to be a right to be anonymous​.

■ Ex. A person parading across campus with a protest sign of some sort is engaged in freedom of expression. The person has no duty to say who he or she is.

○ Anonymity is a big component in digital media of all varieties. ■ As it relates to anonymous “news” on the internet that results in legal action, ​we have the “Dendrite Test.”

● Dendrite Test -​

○ Has the plaintiff made a preliminary case that he/she

has been libeled based on the specific published

statement?

○ Has the web host tried to alert the publisher of the

statement?

○ Has the judge decided that the strength of the plaintiff’s case outweighs the “right to free speech”? ○ If the answer to all questions is “yes”, a web host will likely be required to disclose whatever personally identifying information it has about an author ○ Ex. Ea​ rl has a blog and invites open comments. Repeatedly, “possum42” comments that Earl is a child abuser and makes all kinds of defamatory statements. Earl can request a Dendrite Test from the court to seek whatever identifying information can be mined about “possum42”.

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