Legal Tips for the Nonprofit Journalism Organization

The practice of journalism is undergoing a turbulent transition. Although the Internet makes it far easier to deliver information to people, it also opens up new avenues for legal liability. Not surprisingly, journalists wishing to practice their craft online often have a lot of legal questions. Should I form a business or nonprofit organization before posting online? What happens if someone sues me for defamation? How do I protect my work from being re-posted by others? Is there a way to reduce my legal risks when publishing online?

To help you answer some of these questions, The Hub features this special blog post by Lauren Campbell of the Citizen Media Law Project (CMLP) at Harvard University’s Berkman Center for Internet & Society.

Nonprofit Organizations

Those who operate a nonprofit corporation enjoy limited liability for the debts and obligations of the organization, and the organization is not subject to income tax on the federal and (usually) the state level.

There are important restrictions involved in operating a nonprofit, however, including limits on the purposes of the organization’s activities, a ban on personal benefit from those activities, and restrictions on political and lobbying activities, and the process of filing for tax-exempt status can be time consuming in contrast to the obligations imposed on other business forms discussed above. Also, keep in mind that a nonprofit has no owner(s) in the ordinary sense, and therefore creating one involves relinquishing control. In addition, nonprofits have strict dissolution requirements, they cannot pay dividends, and employees can only receive reasonable salaries. Nevertheless, this may be a good option for members of a collaborative venture that does not aim at making a profit, who want increased legal certainty about their status, and to enjoy limited liability and tax benefits.

For a more detailed discussion of factors to consider when forming a nonprofit organization, visit the Citizen Media Law Project’s Legal Guide section on Nonprofit Organizations. This section addresses liability, formation, management structure, operation, ownership of assets/distribution of profits, tax treatment, prohibition on political and legislative activities, and other considerations.

Risks Associated with Publication

Every time you publish something online, whether it’s a news article, blog post, podcast, video, or even a user comment, you open yourself up to potential legal liability. Often the legal risks are small, but not always. The risks you could face when you publish online can take a number of forms, depending on what and how you publish. The information below provides a brief overview of potential legal risks to help you identify potential “red flags.”

Defamation and False Light: If you publish information that harms the reputation of another person, group, or organization, or inflicts emotional distress upon another person, you may be liable for defamation or false light. The crux of both of these claims is falsity; truthful statements and implications that harm another’s reputation will not usually create liability for defamation or false light.

Publication of Private Facts: Even if what you publish is true, you may be held liable for publishing private facts. This refers to information about someone’s personal life that has not previously been revealed to the public, that is not of legitimate public concern, and the publication of which would be offensive to a reasonable person. Some examples are writing about a person’s medical condition, sexual activities, or financial troubles.

Misappropriation and Right of Publicity: Using someone else’s name, likeness, or other personal attributes without their permission for a commercial or exploitative purpose could open you to liability for misappropriation or right of publicity.

Reader Comments and submissions: Section 230 of the Communications Decency Act (CDA 230) will likely shield you from certain kinds of liability for problematic statements made by your users, guests, and other third parties on your site, even if you moderate this content. Keep in mind that CDA 230 only protects from content created by a third party. It does not shield you from liability for your own statements or for potential copyright and trademark violations.

Terms of Use and Privacy Policies

If you publish content online, and particularly if you allow visitors to your site to post comments about your content or upload content of their own, it can be useful to establish ground rules for how you interact with users and how users interact with the site. Some jurisdictions also have laws requiring websites to disclose certain information about the rights and responsibilities of the site and its users, including users’ rights to control personal information collected by the site. Most commonly, these requirements are met by including two statements on your site: “terms of use” (sometimes called “terms of service,” “terms and conditions,” or a “user agreement”) and a “privacy policy” (sometimes called “Your Privacy Rights” or a similar title).

Terms of use govern the relationship between the site and its users or visitors, by putting your users on notice of what you consider to be acceptable use of your site and what you do not. They can enable you to reserve the right to deny access to users who engage in objectionable conduct and to remove content that you find offensive or that may subject you to liability from third parties. Terms of use can also establish the scope of your rights to use, modify and republish user submissions.

A privacy policy informs users how the website deals with users’ personal information. Privacy policies generally explain what information your website collects about your users and what you will and will not do with that information.

Copyright

A basic understanding of copyright principles is essential for any blogger, researcher, reporter, photographer, or anyone who publishes their creative works. It’s important for two reasons. First, you should understand how you can protect your own legal rights in what you create, so that others don’t take unfair (or even unlawful) advantage of it. Second, you should understand how you could properly make use of someone else’s work – quoting from it, reprinting it, summarizing it, even parodying it.

Copyright can raise complicated issues, and a detailed discussion of copyright is located at the Citizen Media Law Project’s Legal Guide. Issues addressed in the Legal Guide include the following:

Copyrightable Works: Is your work protected under U.S. Copyright Law?
Copyright Ownership: What does owning the copyright allow you to do?
Protecting Your Copyright: Do you need to register your copyright? What benefits does registration confer?
Using the Work of Others: Can you use somebody else’s copyrighted work to create new works? Do you need to get permission, or is your use a “fair use”?
Letting Someone Else Use Your Work: What if you want to let others use your work? How do you establish parameters for someone else’s use?

The CMLP Legal Guide offers detailed information on these topics, as well as a number of other issues facing online and citizen journalists. You can browse the guide by topic, look for state-specific legal information, or search by keyword for a specific issue. The guide is free to use and an excellent resource for those just getting started in online publishing, or experienced publishers with specific questions.

Seeking Legal Assistance

Members of The Hub who need legal assistance can contact the Online Media Legal Network (OMLN), a free online referral network that connects qualifying online journalism ventures with lawyers and law school clinics willing to provide legal services on a pro bono or reduced-fee basis. The OMLN has helped online journalism ventures find legal assistance in a wide variety of areas, including business and nonprofit formation, terms of use and privacy policies, copyright licensing and fair use, access to government information, pre-publication review of content, and representation in litigation. There is no cost to apply to the OMLN, and use of the referral service is free. In order to qualify for the network, however, clients must meet the following criteria:

Viability. We believe that limited resources can have the greatest impact when focused on ventures that are economically viable and/or sustainable over time.
Adherence to journalistic standards. We seek to support ventures that practice the journalistic standards of truth, fairness, and transparency.
Innovation. We’re looking for ventures that are at the forefront of efforts to harness the Internet to revolutionize journalism and fill unmet market needs.
Independence. The network will primarily support media ventures that are independent of the traditional media or corporate ownership.
Original reporting. Preference will be given to ventures that create their own original reporting, or that use traditional news sources in new and innovative ways.
Public interest. Priority will be given to ventures that serve the public interest, including those that fill important information needs or foster a sense of community.

The lawyers at CMLP are also opening their Online Media Legal Network (OMLN) to members of The Hub who are looking for personal assistance from an attorney. The OMLN is a free online referral network that connects qualifying online journalism ventures with pro bono lawyers and law school clinics. The network contains over 175 members in over 35 states with expertise in a wide variety of areas, including nonprofit formation, access to information issues, pre-publication review of content, and representation in litigation.

For more information about the OMLN, or to request assistance through the network, visit http://www.omln.org or email legalhelp@omln.org.

Lauren Campbell is a staff member of the Citizen Media Law Project (CMLP)