Legal resource material

Libel & Invasion of Privacy (cont.)

Note that advertorials may be treated differently.  They generally promote a message, not a product, even when they are published by a company that normally advertises its product. Such advertorials may be viewed as news or editorializing, but that doesn't mean you can't be sued.  It just means you are less likely to lose in the suit.

Private facts about a person may be the subject of suits in some states. There is broad divergence among state laws in this area.  Some say that a fact, once public, can never be private. Others, notably California, have said once-public facts may become private if sufficient time has passed without the fact being mentioned publicly. In all states that recognize such claims, the plaintiff must demonstrate that s/he worked to keep the information from the public.

What's public and what's private?  If it occurs in a public place its public. So if you are promoting the downtown business district and you shoot a photo of some stores and a couple walking by arm-in-arm there can be no claim against you, even if the two people are married but not to each other, or they are homosexuals who have never revealed their lifestyle to family members.

As I said earlier, false light is treated much like libel. If you publish statements which give readers a false impression of the person and that person's self esteem is injured you may be sued. Often false light claims accompany libel claims.  Fortunately, courts generally impose the same limitations on false light claims that they impose on libel.

Libel & Invasion of Privacy (cont.)

Privacy comes in four basic forms.

  • Intrusion is a physical entry into a private area -- rummaging through a woman's purse, peeping through the slit in curtains to see what's going on inside. The invasion of privacy is the act independent of any publication.
  • Publication of private or embarrassing facts may give rise to a suit.
  • Placing a person in a false light is another form. It is much like libel, but the person is claiming injury to self esteem, not reputation.
  • Misappropriation -- the use of a person's name or likeness without permission for commercial gain.

The last one, misappropriation, is obviously relevant to advertising. Private facts, false light mainly arise in the context of news coverage, but may become a problem for PR people. Misappropriation may become an issue for PR people as well.

Libel & Invasion of Privacy (cont.)

It is often said that truth is a complete defense to libel, but under our system, the person suing must prove falsity to make out a libel claim. Therefore, you need not prove the truth of your statements until the plaintiff has provided a sufficient amount of evidence that it was false. In many cases, proving truth or falsity is not a simple issue.

Fair and accurate reports of government proceedings and documents are usually privileged, but laws vary from state to state.  Members of Congress and state legislatures generally have privileges protecting them from libel claims for statements made in the chambers.  But, as former Sen. William Proxmire found out when he gave his famous "Golden Fleece" award, when you leave the halls of Congress and make public statements you lose the privilege.

Generally republication of a libel makes the republisher just as liable as the original speaker. However, as communicators, if you republish statements for which the original speaker could not have been sued, you have a privilege against suit.

For a statement to be libelous it must be "of and concerning" the person claiming to have been libeled. Therefore, if you make a comment that "the president of a local bank (not identified) is bankrupt" and there are only two local banks, one of the bankers can sue you for libel, claiming you impugned his business acumen. This concept, know as "group libel," generally only works if the group is smaller than 25 people.

Libel & Invasion of Privacy

Libel (written) and slander (spoken) are real problems for the news media, freelance journalists, public relations and advertising people, although the latter may have more risk of trade libel than the more traditional form of libel.  We'll talk about the generically as libel.

There are five elements that must be satisfied for there to be a libel: a false statement, that is published, that is of or concerning the person or entity claiming injury, that causes injury to that person or entity, and that is not privileged. People often talk about "defamation" as though it were a synonym for libel, but in reality, defamation is an injury to reputation. Thus, you can have a defamation by publication of true information and it would not be libelous.

Added to this, if the person is a public official or public figure s/he must prove "actual malice" to win any damages -- that the publisher knew the information was false or published in reckless disregard for the truth. If the person is a private figure, in most states s/he need only prove negligence to win damages -- that a reasonable speaker in similar circumstances would have know or found out the information was false and not published it. There are some people who are general-purpose public figures, often celebrities, because they have sought to make their names household words. Others are limited-purpose public figures who have thrust themselves into the limelight with regard to specific issues (i.e.leaders of the opposition to a school bond referendum). They may be treated as public figures when discussing the school bond referendum, but if you comment about their family lives they would only have to prove your error was the result of negligence.

What To Do if You Don't Get the Records

If you are denied access to information, you can appeal to a higher authority in the agency and ultimately to a court. Under the federal law you go to the U.S. District Court where you live or where the agency is located.

If you become involved in a dispute over access, issues that may have to be addressed include whether the information you seek is a public records, whether it is exempt or contains exempt information, and what form the agency must disclose it in. Agencies often acquire and file information that isn't considered public records.

State open records laws often say a record is a "public record" only if the agency is required to prepare or keep that record. Therefore, if the city finance agency is not required to keep plans for a building under construction, it doesn't have to disclose those plans even if it has them.

If a record contains exempt information that can be segregated from non-exempt information, it must disclose the non-exempt data. Sometimes you will receive photocopies of records with areas blacked out with black marker. You will have experienced the heavy hand of the agency's FOI officers.

The Information You Receive

The format in which an agency releases information may be critical. As time goes by, more government information is stored in computers. Some state open records laws specifically state that computer data is public record information. Since 1996 the federal FOI Act has required agencies to post certain categories of government records on their web sites and to comply with FOI Act requests for disclosure in electronic formats.

For you, the critical issue is what is useful? A microfiche is useless if you don't have access to a reader. A printout that runs thousands of pages is useless, but a floppy disk of data you can load into a database and search may be invaluable. Therefore, if you know data is stored in computers you should ask for electronic files if you can use them. Also ask if special software is needed to manipulate the files or if the data is in a common format. If you need special software ask how you can get it.

Fees & Fee Waivers

If you are seeking information for news, research or educatinal purposes you get certain fee benefits under the federal FOI Act. You cannot be charged for the time it takes to search for the records and review them, and you get 100 pages of copies at no charge. If you are a commercial requester or are seeking the information for purposes other than those listed above, you pay for search and review time and all copies.

If you are seeking the information for publication and it will primarily benefit the general public you may be entitled to fee waivers and the information might cost little or nothing.

Journalists and others who are entitled to fee benefits or fee waivers should send their request letters on letterhead stationery if possible. Journalists employed by news organizations should have no difficulty demonstrating that they are entitled to fee benefits and that they are likely to publish the information and should be considered for fee waivers. Freelancers should include a list of prior publications or other information demonstrating that they are engaged in news gathering. Explain briefly the purpose for which you are seeking the information and the public benefit disclosure will serve. If you're worried about protecting yourself from being scooped this section of your letter has to be drafted carefully.


Making an FOI Act Request

Your letter should say you are requesting information under the Federal Freedom of Information Act, or the applicable state statute. It should explain what information you are seeking. The narrower the request the more likely you are to get a favorable response and the sooner you'll probably get it.

If you are using the information for news, research or educational purposes, tell the agency that because you may be charged reduced fees or you may convince the agency to waive search and copying fees. I'll talk more about them later.

The agency may respond by providing the information, or may claim the information is exempt, or it may say "the cost for processing your request is estimated to be . . ." and that it will locate and send what it has if you first cough up the cash. Obviously, the first response is the one you most want to hear. You can sometimes facilitate things if you say in your request letter that the you'll pay up to a certain amount for the information, indicating that the agency should go ahead if the cost will not be greater.

There are nine exemptions to the federal FOI Act covering national security data, internal agency policies, trade secrets, predecisional inter- and intra-agency memoranda, personal privacy, law enforcement records, certain financial institution data, and data on oil and gas leases. There is also a catch-all exemption stating that if another federal law makes records secret you cannot get them under the FOI Act. A classic example is tax returns. The IRS Code states that they may not be disclosed and the FOI Act cannot be used to get access to them.

Access to Government Information

Governments, local, state and federal, are horders of useful information, tons of it, rooms full of it, computers overflowing with it.  There's census data, real estate records, court records, product data and lots more.  If you want an idea of how much and what types of government information you might want take a look at Informaiton USA published by Matthew Lesko,

A large percentage of that information is yours for the asking, if you know who and how to ask. All states and the federal government have open records laws that create a presumption that "public records" of government agencies are open to you unless they fall within enumerated exemptions.  Court records are presumptively public under the First Amendment, common law or court rules, and may be withheld only under limited circumstances.

When you are seeking information the first task is to determine where it might be found.  If more than one agency may have it ask all that are likely candidates. If you determine that a particular federal agency is the likely source you may have to ask its headquarters in Washington, D.C., and its regional office where the data may have been gathered.  A federal agency is not required to search files in all its field offices to comply with an information request.

The Copyright Office

Under the current law a copyright lasts for the life of the creator plus 50 years.  However, works created prior to 1978 were copyrighted for 28 years and the copyright could be re­newed for one more term.  Works protected by copyright in 1978 received a special ex­tension making them eligible for protection for 75 years from the date of first publication or registration.

You can find out who owns a copyright in a variety of ways.  If there is a copyright notice on the work the name of the owner is in­cluded.  If the work was registered with the Copyright Office you can consult its Catalog of Copyright Entries.

The Copyright Office is online. Its web page can be entered through the Library of Congress homepage ( You can search the copyright registration database, obtain forms for registering your copyrights in .PDF format, and obtain copies of publications explaining copyright and procedures to follow in registering. There is also a Forms Hotline, (202) 707-9100, where you can leave a message re­questing specific forms or publications, which will be mailed to you within a few weeks.