The new Texas Free Flow of Information Act: Good news – it’s working

If there was ever any doubt about the utility and worth of a reporter’s privilege against third party requests for information, the proof is in.

In just over 14 months since the passage of the Texas Free Flow of Information Act, the number of subpoenas for trial testimony, document production or broadcast reproductions has dropped dramatically. Newsrooms across Texas are back doing the work they were made to do: securing the news and broadcasting or publishing it to the public for the common good.

For years, advocates of the broadcast and publishing industry lobbied the Texas Legislature for the passage of a shield law. Because our Legislature meets only every two years, the time required to pass this law was twice what it might have been. In the legislative sessions in 2005, 2007 and 2009, free speech advocates took their message to both the House and Senate. Finally, the current law was passed by both houses and became effective May 13, 2009.

Before the passage of the FFOIA, Texas newsrooms were being inundated by requests for information, trial subpoenas and document subpoenas by both civil and criminal litigants. It had become the quickest, easiest way for litigants to secure factual information that had been gathered and published by news organizations. While that was a cost-saving method for those litigants, the cost to the news organizations was both substantial and unavoidable.

Newsrooms had to set up standard protocols to manage and answer the innumerable requests. Most times, in order to ensure they were following the law correctly, this entailed the use of outside counsel, adding yet another cost to the transaction. While the actual costs of newsroom time, resources and attention spent on these requests were never quantified, the sheer number of requests highlights the depth of the problem.

According to statistics compiled by the Texas Association of Broadcasters, in the years leading up to the passage of the FFOIA, newsrooms were being subjected to an average of 30 requests per year, or one every two weeks. Some major market stations were served with subpoenas once every six days while another smaller market station was shut down for nearly two days in order to comply with the subpoena.

Since the passage of the FFOIA, the numbers have dropped so dramatically that averages are in the single digits. Most stations report that just quoting the FFOIA provisions to the requestor has stopped most subpoenas in their tracks. While the bill passage was watched closely by media outlets, it is not well known outside those circles.

This is great news for the news organizations and not the death knell for litigants the opponents of the bill foretold. There is no indication that fewer civil cases are being filed because the litigants can’t secure their proof from news organizations. Certainly, there is no indication that fewer criminals are being punished or set free because of this change.

Indeed, all the FFOIA actually did is return the litigants to the status they have always had under the law. They have just as many rights now as then, just as many legal theories with which to seek a civil remedy, and just as many sources of actual facts from those who were involved in them: not from a third party news source who arrived after the fact and reported what was told to them by the actual participants. Rather than having created a news room untouchable by the courthouse process, the FFOIA allows the news room to return to their assigned role in society — to gather and report the news.

Social media Twitter

Ideas for reporters on how to make better use of Twitter

If you’re a reporter who uses Twitter (and if you aren’t, why aren’t you?), take a few minutes to look over this list of six suggestions on how to make Twitter work for you. No obscure techie-stuff here, just concrete, practical ideas you may not have thought of. Reminders include suggestions about upgrading your bio and your photo to ideas about how to use Twitter to prepare for interviews. And if you get really interested in Twitter as a reporting tool, there are lots of useful links to help you dig deeper.


Video on the Go Workshop Materials

Aaron Chimbel, a faculty member at the TCU Schieffer School of Journalism, led a workshop for community journalists in September 2010 on shooting and editing simple video stories using the Flip video camera. Below are his handouts from the workshop.

Story ideas

Story idea: How sick are the inmates in your county jail

Here’s a story that’s easy to localize: The Texas Tribune has a story on the health of inmates in Texas county jails. Sheriffs say that sickness among inmates – often made worse by chronic ailments and drug or alcohol addiction – rivals the illness rates in state lockups, despite the fact that counties house only half the number of inmates. There are no state standards for health care in county jails, and illnesses can spread quickly and are expensive for jail budgets. You may find that it’s a costly and significant problem in your own county.


Phil Record was a friend of community journalism

This week the Center, and indeed all of community journalism, lost a friend and mentor.

Phil Record, long-time Star-Telegram editor and ombudsman and for the past decade professional in residence in journalism ethics at the Schieffer School, died of a heart attack Sunday evening. Phil was a consultant in ethics for the Center and had spoken at several workshops and answered queries in our Ask an Expert service.

Phil represented the best of what it means to serve our readers. He was committed to honesty, fairness, accuracy, and the highest standards of ethics in our profession.

He will be missed at the Center, but he will also be missed by all newspeople everywhere who relied on his wise advice and his insights on difficult ethical dilemmas.

Ask an Expert Questions and Answers

Can I use a Facebook photo in a news story without permission?

Update: The post below led to a research project regarding fair use and photographs taken from social networks and used for news purposes. The results largely confirmed the suspicions of this post, that using a photo is not fair use, with some exceptions. The article was published in the Journal of Telecommunications and High Technology Law in 2012, and a full, free, downloadable version is available here:

It's a question I've heard from our student newsroom twice in the past couple of weeks, and I've heard some chatter on Twitter on it as well from @hartzog, @derigansilver and @johnrobinson.  "Can I use this photo I found on facebook in my news story?"

The scenario usually unfolds like this:  A story breaks on a relatively unknown person, and without a mug shot or an AP wire photo available, intrepid reporters turn to facebook or MySpace for photos of this person.  Sound familiar?  If you remember Eliot Spitzer's  (ahem) friend  from the high-end prostitution ring from a couple of years ago, or the red-haired Russian spy more recently, the first photos you saw of them were, most likely, from MySpace (in the case of Ashley Dupre) or facebook (in the case of Anna Chapman) accounts.

I'm going to guess that the reporters who dug up these photos didn't get them through a publicist or ask for, much less receive, any permission to publish them.  This approach comes from the classic Internet  culture of "I found it online, and it's free, so I must be able to use it."  And that worked out so well for Napster, right?

Two issues come up in this scenario – one legal, one ethical.  Legally, I see a huge copyright issue here.  Whoever took that photo has a copyright in it, attaching the moment the photo button was pushed.  It's an original work of authorship in a fixed medium of expression.  The copyright act couldn't be clearer on this.

The question is, does it just become public domain by virtue of being posted on facebook?  Of course not.  If you put up a photo of your lost dog on a coffee shop bulletin board, does that photo become public domain, able to be used anywhere by any person who wants to grab it?   If you leave a photo album on your coffee table, can any guest to your home borrow a photo and use it for whatever purposes they want?

So, moving online, is that unfortunate photo of you in the sombrero from college tagged on someone else's facebook account fair game for use by anyone – friend or otherwise – who can access it?   Perhaps they could make a nice greeting card from it?

And I don't think this qualifies as fair use either.  A use for news purposes would meet the first threshold for review under fair use guidelines, but under the four-part balancing test applied by courts in looking at fair use, I don't see how any one favors the republisher:  The use is for-profit, the entire photo is used, it most likely is a significant element of the news story, and it harms the market for the original copyright owner by giving away for free what the owner could legally sell.

So how, you may ask, did the photos of Ashley Dupre and Anna Chapman wind up with news stories about them?  Chances are, reporters grabbed and posted, and nobody asked any questions afterward.

Think about this:  What if someone had?  What if the people in these photos, or the people who took them, felt wronged about the use of their facebook photos?  What remedies would they have?

Invasion of privacy is, most likely, not an option.  As you probably know by now, you don't have any reasonable expectation of privacy in photos or statements made on the Web.  It's a bit like posting the lost dog poster in the coffee shop or putting out your photos on the coffee table – you give up your right to claim intrusion when you invite public people to see them.  As my privacy-expert friend Woody Hartzog points out, you may have a (warning, legal jargon ahead) promissory estoppel claim through facebook's Terms of Service – that is, friends promise not to violate others' copyrights (see the Terms of Service, Part 5, first item) as a term of signing on to facebook, and breaking that promise means one could be liable for damages incurred as a result of that violation.  The MySpace terms present a similar quandary.

[For what it's worth, the facebook Terms of Service DO allow facebook a "non-exclusive, transferable, sub-licensable, royalty-free, worldwide license" to use the photos you upload.  These do not carry over to all users, of course.  But creepy, eh?]

But that's not the strongest argument.  If the person whose photo was used wants to make your life miserable, he or she could make an easy copyright infringement case against you.  All they'd have to do is find the friend who took the photo, ask him or her to file for a copyright on it, then go to federal court and ask a judge for damages.  Minimum statutory damages are $750 per violation, but I could see a photo that gains widespread attention bringing in more than that.  Why shouldn't the person who took that photo be entitled to the same kind of protection that, say, a professional photographer should if somebody used his or her work without paying for it?

I'm not saying this is the most likely scenario.  The easiest remedy for someone to take to remove a photo from unlawful republication would be to issue a takedown notice to the ISP under the Digital Millennium Copyright Act.  But that won't make them any money, nor will it satisfy their lust for revenge. 

People who feel hurt will find ways to hurt you back, and they have all the legal rights they need if you violate their copyright by reposting a photo.   So don't do it.

Instead, take the easy and obvious route:  Ask permission.  Get it in writing (keep your email messages).  Only reprint when you know the copyright holder has consented.  And if you can't get that consent – it's probably a good thing you didn't publish it, right?

Onto the ethical ramifications here.  While facebook users may not have any privacy rights guaranteed by the law, they do have reasonable belief that the service is to share their information with friends.   As a journalist, would you have any ethical issues with rifling through the photo album of a citizen after he or she had been arrested or implicated in some huge news?  Consider the following from the SPJ Code of Ethics:

"Recognize that private people have a greater right to control information about themselves than do public officials and others who seek power, influence or attention.  Only an overriding public need can justify intrusion into anyone's privacy."


"Show good taste.  Avoid pandering to lurid curiosity."

Consider the photos of Ashley Dupre in a bikini.  Is there overriding public need for this information?  Or is this pandering to lurid curiosity?

In short, facebook photos aren't posted with the intent of becoming public domain and usable for any purpose, news or otherwise.  Journalists should know better.  And for those who don't, some day, the hammer will come down.  I tell my students, "don't let this be you."  I offer the same advice to journalists everywhere.