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Publishing on the Internet has widened the scope of communications in ways unimaginable only a decade ago. The ability of people around the globe to see even the most rural publications in a matter of seconds has provided levels of access that offer both great potential and complex legal considerations.
By Don Williamson
M ark Goodman is executive director of the Student Press Law Center, a not-for-profit organization that provides free legal assistance and information to student journalists and their advisers.
“Existing media law has direct relevance to online publishing, but it doesn’t fit exactly to issues of gathering and publishing information online,” says Goodman. “What we are finding is a whole new area of legal research with many unanswered questions we have to respond to for students who come to ask us for help.
The impact of the World Wide Web has spawned significant, ongoing legislation that continues to unfold and take shape on a daily basis. Concerns about the exploitation of children online generated laws such as the 1998 Children’s Online Privacy Protection Act (COPPA) that prohibits the online collection of personally identifying information from children under the age of 13 without prior verifiable parental consent.
The cost and difficulty of COPPA compliance has caused many Web sites to stop providing content aimed at children under 13. It has also had an impact on the way some NIE programs do business.
“The privacy policy creates all sorts of issues for us,” says Jill Armstrong, NIE coordinator and Web master, for the Denver Newspaper Agency that serves both The Denver Post and The Rocky Mountain News. “We do a kids’ page every Tuesday. We’d love to have online contests and give goodies away, but we can’t because of the online privacy policy.”
Armstrong doesn’t think the law is clear on what can and can’t be done and feels some safety concerns constrict what she is able to do as an NIE coordinator. She gave the example of a child who won a contest she promoted. The child’s name and picture appeared in the daily paper and went up on the Web site.
Four months later, as part of a classroom assignment, the child entered her name onto a Web search engine and pulled up a copy of the old article with her name and picture. An administrator from the school called and said Armstrong was wrong to identify the child in that way on the Web, even though parental consent had been given.
“No one complained about the name and picture in the newspaper. But online, people seem more sensitive and worried about predators, than in print,” says Armstrong. “We want to honor safety. The last thing we want to do is place a child in a vulnerable position because too much information is out there.
“I do think schools have become much more cautious. There’s a lot of sensitivity by school administrators who feel vulnerable and protective,” says Armstrong. “Still, it feels to me that putting kids’ names on a Web site is not any more threatening than putting them in the paper.”
As a result of that incident, the Denver Newspaper Agency limits the amount of identification it offers online for children. They may use only a first name, or the name and the school district. They never use the full name, a picture and the child’s school, according to Dana Plewka, educational services manager for the Denver Newspaper Agency. “No one wants to endanger a child and as the manager, I decided to change our policy,” says Plewka.
The Printed Word
Jonathan Hart is a member of the law firm of Dow, Lohnes and Albertson, PLLC, in Washington, D.C., where he practices media law. He is also the author of Law of the Web, A Field Guide to Internet Publishing, published by Bradford Publishing Company. It is a book he believes is useful for journalists and intelligent non-lawyers–although he says lawyers could also use and appreciate the book.
“This is an area of the law that is developing very quickly, because the economy is moving very quickly in that direction; and for that reason, there is a need to update a broad range of material,” says Hart. “We actually update the book twice a year. A hard copy is printed every spring, and we post a PDF supplement to the publishers’ Web site in the fall.”
Hart notes that Web and print are similar in the way they are viewed legally.
“There’s not much difference between the Web and print from the perspective of the law. Journalism law has been developed over hundreds of years and has been applied to each new medium,” says Hart. “The libel law we use in the United States was developed from a body of British law in the eighth or ninth century. That same law has been adapted to accommodate the advent of the printing press, radio, TV and cable.
“There are subtle differences, but fundamentally, the Web is just a new content-delivery system. Most, if not all, of the old rules apply,” says Hart. “The most fundamental difference between the Web and print occurred when Congress made an effort to define the liability of online publishers for content posted by a third party.”
His reference was to section 230 of the Communications Decency Act of 1996 wherein Congress says online content providers cannot be held liable for information provided by another online content provider.
“That does protect Web publishers in a way other publishers are not protected,” says Hart. “For example, print magazines are responsible for content if it’s written by freelancers. On the Web, there may be protections that don’t exist in print.
“But there’s no difference in how you write about youngsters under the age of 13. The legal difference is in how you are able to gather information about them. If a print publisher wants to do a contest or a survey, a database can be created and marketed back to children. A Web publisher can’t do that.
“The law refers to data collection online and pertains to knowingly obtaining that information. It pertains to all sites–those that target children, as well as sites aimed at the general public,” says Hart. “You’re not allowed to collect personally identifiable information from children under 13 online. You can do it offline and develop offline databases. But you can’t commingle online and offline databases.
“One important consequence of the law is that when publishers write their online privacy policies, they need to be careful in stating that their policies about data collection apply only to online activity. Otherwise, the Federal Trade Commission will assume those policies apply to all of the publisher’s data collection (online and offline).”
Student Press
Mark Goodman of the Student Press Law Center is also not convinced that the Internet is a more dangerous place for putting students’ names than the printed paper.
“The short answer, however, about current concerns about online information in relation to printed material is that it is mass hysteria,” says Goodman. “There isn’t any legal reason why names and other information about minor students are any less publishable online than in print.
“We hear high school staffs say they can’t put names online, but it’s okay to put them in print. They say the justification is concern about the safety of students mentioned or depicted. It is based on fear that is extremely exaggerated, not legitimate and does not have a realistic likelihood of risk.”
Goodman gave the example of school newspapers and yearbooks that can routinely be found in public libraries and notes that SPLC contacted the FBI and was told there was no example where any student was harmed or threatened by anything published in a student publication.
“Because the Internet is this new technology, and there is so much hype about the possibility of predators operating in an online world, folks have transferred that fear into the situation in student online media,” says Goodman. “We can’t say it would never happen, but it is fair to say any student identified in a student publication would be in more jeopardy from information in a printed edition distributed in their local community than online by someone half a globe away.”
Still there are concerns and doubts that exist about propriety, if not legality, when dealing with privacy issues and children.
“The age of our population is part of the problem. There are guidelines about how to write about a criminal suspect under the age of 18 or a rape victim, but we don’t have real clarity about how to handle these privacy issues,” says Armstrong. “As part of NIE, we feel more of a connection with the education community and schools and teachers and kids. We’re wondering what we should or shouldn’t do, and it often makes us decide not to do new things. We’ve steered clear of bulletin boards and chat rooms. Just because everyone is doing it, doesn’t make it right.
“I almost feel like there’s a mine field out there, and some paper is going to step on a live bomb,” says Armstrong. “We’ve all been traversing this mine field and so far, it hasn’t blown up. But you don’t know. You just don’t know.”
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