Legal Issues to Consider Before Unpublishing a Story
There are a variety of ways that news organizations can handle requests to unpublish content. But the alternatives to unpublishing don't always satisfy those making the requests. In some cases, requests can lead to lawsuits.
To find out more about the legal issues related to unpublishing I talked with lawyer Rachel Matteo-Boehm, who has 13 years of experience working with media outlets on requests to unpublish, libel issues and topics such as privacy, trademark and copyright.
In an e-mail interview, Matteo-Boehm addressed some of the challenges journalists face and the questions they should ask when confronted with decisions about whether to remove content. You can read her edited responses and related advice below.
Mallary Tenore: If a person tells a news organization that he/she is going to take legal action if the content is not removed, how should the news org respond?
Rachel Matteo-Boehm: First and foremost, the news organization should consult legal counsel. If there is an error in the content, legal counsel can instruct the organization on the best way to proceed, taking into account any applicable retraction statutes. If there is no error in the content, an appropriate letter to the person making the demand can often avert legal action. In addition, in some circumstances, the news organization may want to invite the person making the demand to post a comment, or to author an opinion piece (subject to editing and approval by the news organization).
From what you can tell, how common is it for someone to take legal action in these types of situations?
Matteo-Boehm: The news organization's initial response to a threat of legal action, if properly handled, can avert legal action in many circumstances. That said, suits over online content -- both user-generated and the news organization's own content -- are not uncommon.
What advice do you have for news organizations that have been asked by a source or another member of the public to remove a story or comment? Are there certain questions they should ask themselves before making this decision?
Matteo-Boehm: First, I think it's important to make a distinction between a story authored by the news organization itself and a comment posted by a user of the news organization's website.
If it is the news organization's own story, is there an error? If so, the news organization may well decide to take down that content, but may also need to publish a separate correction or retraction if the organization wishes to invoke the protections of the particular jurisdiction's retraction statute.
These statutes vary from jurisdiction to jurisdiction, and not all states have a retraction statute, but where they do exist they can provide important defenses to a libel or other similar lawsuit. Each jurisdiction's retraction statute has its own special set of requirements, and these need to be closely followed.
The alternative would be to leave the original content in place, but to publish a correction. In such a situation, the correction should be appended to the archived version of the story so that the correction appears together with the original content as part of a Web search.
It is important to remember that although removing the content may reduce the risk that the complaining party will sue (because that is often what the person most wants), in those instances where there is a problem with the story that makes it subject to a suit for defamation or another cause of action, the complaining party may still pursue a lawsuit even though the content has been removed. Put another way, once the content is published, it can be the subject of a libel suit even if that content is later removed.
But what those situations where there is no error? Unlike back issues of printed content that were relegated to a news organization's printed archives and relatively inconvenient to access, old Internet content is easily accessible and can be easily retrieved with a simple search engine query. Because of this, news organizations are increasingly being asked to take down content that does not contain any errors, sometimes months or even years after the content was first published.
The reasons for this vary. Sometimes the person complains that even though the content was accurate at the time it was first published, the circumstances have since changed and the content is out of date.
Other times, the person identified in the content simply wants to stop being haunted by content that is offensive, embarrassing, is keeping them from getting a job, etc. -- there are any number of reasons that can prompt these requests -- and is continually popping up on search engines.
One can sympathize with many of these requests. At the same time, there are concerns about setting a precedent for future requests, to say nothing of the desire to preserve the historical record. In a recent survey of 110 news organizations, The Toronto Star found that requests to "unpublish" are being made with increasing frequency, and although more than three-fourths of respondents said circumstances sometimes arrange granting these requests, there was overall strong reluctance to remove published material from online news sources unless there is a clear and compelling reason to do so or someone's life is endangered.
The news organization should also consider other options short of removing the content. For example, news organizations have in some cases appended an editor's note or update to the original story. But there is certainly no legal requirement to do so, so long as the story was accurate at the time it was first published.
As for user-generated comments posted to a news organization's website, there are a whole additional set of issues. First, the news organization should remember that section 230 of the Communications Decency Act immunizes a website operator from claims of libel, privacy, and other similar causes of action stemming from user-generated content.
The Digital Millennium Copyright Act provides similar protection for claims of copyright (but only if the news organization complies with the Act's requirements). While these laws don't cover every claim that may be made against a news organization based on user-generated content, they provide an enormous amount of protection.
Indeed, without these laws, it would be very difficult for news organizations to allow for user-generated comments, since practically speaking, a news organization cannot investigate and clear every user-generated comment for accuracy, potential copyright issues and the like.
Contrary to popular belief, a news organization does not lose the protection of § 230 of the Communications Decency Act simply because it removes certain user comments. What is important is that the news organization doesn't change the content in such a way that the news organization becomes the content provider.
A news organization should be wary of making promises to remove content in the future. In a couple of recent cases, online publishers have been sued for allegedly promising to remove content and then failing to do so.