As a news consumer, would you be comfortable if your favorite newspaper, or news program used texts and tweets to confirm information instead of old-fashioned, in-person interviews? The following article by attorney Mike Hiestand of the Student Press Law Center explores perils of e-reporting.
Avoid the traps of e-reporting
By Mike Hiestand
We recently gave our oldest daughter a cell phone. Our calling plan includes a fixed number of “talk minutes” so we established strict rules about how much she could use it. Turns out, that was unnecessary. She rarely uses her telephone for talking; she — and her ring of friends — text. She calls me or speaks to her grandparents and others of the pre-text generation, but otherwise her thumbs do nearly all of her talking.
Texting, instant-messaging, Twittering, blogging, social networking, e-mailing and the like are the primary means of communication for today’s young people. It’s not surprising, then, that these practices have followed young journalists into the newsroom. At the SPLC, our mostly college-aged news interns – who sit within eight feet of one another – will more often send an instant message to each other than turn around and ask their question aloud.
Despite its growing popularity, some veteran journalists scoff at interviews and research conducted entirely by “e-reporting,” arguing — I think somewhat persuasively — that email and other forms of written, electronic communication miss the nuances, depth and spontaneity of an in-person interview. Even telephone interviews allow a reporter to hear changes in the speaker’s tone or voice inflection that e-mail and its close cousins don’t pick up very well. A written, “Of course he did it” is much different from the same statement when said sarcastically or with a chuckle.
As a source frequently on the receiving end, I find that e-mail interviews have their ups and downs. On the up side, they do allow for greater flexibility, allowing a source to respond to a reporter’s query at his or her convenience. They also allow time to reflect on one’s answer and provide a concise, often more thoughtful response. On the other hand, providing written responses to a dozen broadly worded questions can take much more time, doesn’t allow for ready follow-up or clarification questions by reporter or source and does seem to have a bit of an antiseptic feel as the words are so carefully honed — both in the question and the response — that the interview loses a bit of the human touch.
Whatever your thoughts on the matter, however, e-reporting is here to stay, at least until replaced by the next leap in communications technology. Given that, it makes sense to learn to use these new reporting tools carefully and avoid some of the more common legal pitfalls.
While most of the legal issues presented by e-reporting are similar to those that arise in more traditional print and broadcast reporting, there are some important differences. Here, briefly, are a few to watch for.
Confirming source’s identity
Unlike a face-to-face interview, and to a lesser degree a telephone interview, conducting an interview entirely by e-mail or instant messages is accomplished without ever seeing or hearing the source, which can — and has — left reporters and editors vulnerable to pranks and more nefarious acts.
As Mike Foley, a former editor of the St. Petersburg Times who now teaches at the University of Florida’s College of Journalism and Mass Communications said for a story in American Journalism Review, “[With e-mail] you don’t know who you’re talking to. It could be the CEO, the public relations VP, the secretary, a clerk — it could be the janitor who just happened to be in there cleaning up.”
Many news media organizations have adopted a policy that requires an editor to call or talk with the author of a letter to the editor to confirm that the person named did, in fact, submit it. It makes sense to adopt a similar policy before concluding that an e-mail or text message is legitimate.
Invasion of privacy
Privacy in cyberspace can be a tricky thing. If you sneak into a locker room and start taking photos of half-clothed athletes without permission, you’ve likely opened yourself up to an invasion of privacy claim. But what if a classmate on Facebook has posted similar photos to his “friends”-only page? Are they fair game to republish in the yearbook? Unfortunately, a hard “yes” or “no” answer can be elusive. For one thing, of course, it will depend on the specific nature of the photo. A highly revealing photo taken behind closed doors is more likely to cause trouble than one taken at a “private” party attended by several hundred people. The answer also likely depends on just how “private” or “public” the Facebook page itself is. If the classmate has only “friended” two or three of his closest pals and you’re not one of them but have somehow gained access to his site, he likely has a greater claim to privacy than if he has 300 friends that can freely view the photos, one of which is you. The key thing to remember: Just because something is in electronic form or online does not automatically make it “public.”
Another potential concern — both for legal and ethical reasons — is the ease with which electronic communication can be shared. While the Supreme Court has indicated that you don’t break any laws in publishing newsworthy, unsolicited information sent to you by others, it’s not always clear whether a particular photo or piece of information is, in fact, newsworthy. Finally, exercise caution and good judgment before forwarding sensitive documents or photos to others. (Remember, they have a “forward” key as well.)
It surprises many to find out that email, text messages and even those tiny Twitter updates are, in most cases, protected by copyright. Once one’s original, minimally creative words are put into a fixed form — even if they are just a bunch of electrons on a screen — the author owns them. And unless you obtain his permission to use them — or unless you can make a legitimate “fair use” claim to use a portion of his work — you don’t have a legal right to republish them. (Unfortunately, a full discussion of the Fair Use exception is beyond the scope of this article. Still, if you don’t know what Fair Use is, as a journalist you must find out. Check out the SPLC’s Student Media Guide to Copyright Law for more information.)
Avoiding confusion about reporting status
The relaxed attitude of some e-reporting can be problematic.
“People sometimes don’t realize they’re on the record,” veteran reporter Paul Conley told American Journalism Review. “I have to remind people that I’m a reporter in order to get a usable quote, to overcome the bad spelling and the willful ignorance of grammar.”
For both legal and ethical reasons it is essential that a source know before he hits “Send” that his text message or email response is being sent to a reporter for possible use in a published story. A prominent disclaimer to that effect on every e-mail message could be helpful, but is probably not an all-purpose shield. Somehow, you must convey — and it must be clear to you that they understand — your reporter’s status before any substantive, on-the-record conversation takes place. (Ideally, you’d retain the written communication as record of their assent, though it’s not required.)
If you have promised a source that you will not reveal his or her identity, you had better not be communicating with them through their personal computer, cell phone or any other form of electronic communication linked to them. E-reporting leaves a clear, physical trail that can pretty easily be traced. In most cases, both you and your secret source will be much better served by an old-fashioned face-to-face interview.
At its core, libel is about publishing information that’s untrue. While e-reporting can be efficient for obtaining quick, concise statements or bits of information from a source, such “efficiency” is no excuse for getting the story wrong. The days of carefully crafted correspondence in beautiful longhand are over. Instead, future historians, chronicling life at the turn of the 21st Century, can look forward to poring though files and files of messages dashed off in 20 seconds or less. (Imagine if email@example.com had sent reporters an advance copy of his opening remarks: “We hld deez truths 2B self-evident, dat ll men r cr8d eql….” ) E-reporting should complement — not entirely replace — more traditional reporting. NetSpeak and 140 characters or less Twitter messages work for some things, but definitely not for others. A complex story requires complex, thorough reporting and a crystal clear understanding of exactly what is being said. The informal, hurried nature of some electronic communication makes that much more difficult, probably impossible. Your job is to find and report the truth. There are no shortcuts.
Finally, while it might not be helpful when trying to protect a confidential source’s identity, that e-mail trail or instant messaging transcript can make it easier to get a source’s quote or the information he provides exactly right. That same e-trail can also help you confirm the quote in case questions later arise about its accuracy. Of course, having such a fixed record can also work to one’s detriment if a reporter carelessly copies and pastes a source’s words or otherwise screws up. The source probably has the same email trail on his computer and can quickly call it up to prove a sloppy reporter’s mistakes.
Mike Hiestand is an attorney, based in the far, upper left corner of the “Lower 48,” and works as a legal consultant to the Student Press Law Center.
© Copyright 1999-2008 Associated Collegiate Press