Why criticism over an ND’s personal Facebook page impacts you

Last week, many TV news watch groups tweeted an article about an ND being criticized and then apologizingfor something he wrote on his personal Facebook page.  Now he has resigned.

The facts of the case itself are compelling, but let’s go beyond to the larger issue.  This is a personal FB page.  This is the leader of a newsroom being criticized.  Again, it points to the fact that in some newsrooms management itself is not clear on what is or is not acceptable online.  If an ND didn’t think twice about these comments on his personal FB page, can he expect the same of his staff?

This reminds us, how very public the internet is.  Many of us think our FB pages are being read by friends only.  In actuality, the internet is extremely voyeuristic.  People love to read what others have to say, even if they don’t know them.  It’s is a large part of the appeal.  Not everyone is simply curious.  Some have axes to grind.  Remember: (a) Journalists are not always held in high regard and therefore are scrutinized more and (B) Journalists are sometimes held in very high regard but not given opportunities by the public to make “honest mistakes.”  We are expert communicators right?

The other interesting element is that the news director says he did not realize how “poor the choice of words were.”  Remember, opinions can put you in hot water.  This is especially true if you are a journalist who is expected to “know better.”

Finally, this story makes you stop and think about social media policies within companies.  Many still do not have one.  That actually makes it easier for journalists to face a backlash even for their non-work sites.  What’s happening with this ND is a good scenario to bring up to your bosses and ask how a situation like that would be handled where you work.  It might offer new insight into management’s views on internet use, period.  After all, media companies are reading about the criticism of this ND’s comments on his personal FB page.  It could serve as an example to help mold future policies all of us must live with.

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(Gasp) I can’t believe he just posted that!

Journalists from all over recently got to see the social media policy for NBC owned stations.  Immediately after an article on TVNewsCheck was posted outlining the policies, journalists and legal experts began tweeting, many calling the policy ridiculous.  No doubt, it is strict.  According to the article, you have to state that you are an employee of NBC Universal on every social media site you use, even private ones.  You also have to get approval from management if you want to express an opinion about any issue, on any of your sites.  Yes, this includes personal accounts.  Any facts should be verified before retweeting someone else’s comments.  All of these points are worth discussion.  There’s already plenty of talk about it online.  But one part really struck me.  An ombudsman for the station group stated that when posting online, there is a tendency to “be more flip.”  Anything you post, you should also be ready to broadcast.  His statement is a reminder that what you say or do online is out there for everyone to see.  It reminds me of what a couple of mentors used to say, “If you do the news, you don’t get the option to be truly anonymous.”

That advice is certainly true, and as Chef Emeril Lagasse would say, “Let’s kick it up another notch!”  What you say online can be seen by more people, than things you say even out in public.  Over the last year I have watched many journalists make comments online that surprise me.  I saw a tweet from a reporter claiming a company she hired for a home repair “stinks” and is a “rip off.”  She named the company, then stated you should never hire this company.  A producer tweeted about a story in one of the station’s newscasts, stating that he doubted a business owner’s claims that a piece of equipment that failed had recently been inspected and passed.   An anchor posted video on Facebook of another anchor shooting the bird and chiding her.  A photojournalist mentioned on Facebook that he thought someone accused of a crime was “guilty as hell” weeks before the trial even started.  The list goes on and on.  And in many of those cases, their Twitter accounts specified exactly where they worked.  Like it or not, that means their comments could be construed as speaking on behalf of those companies.

We all have a right to opinions.  We all have a right to blow off steam.  We all have a right to talk with our friends about things we love and things that bug us.  But participating in social media is more public than going to a restaurant or bar and living it up one night.  There is a far greater chance of getting caught doing something your station will not approve of.  Yes, again some of these social media policies are overly harsh, and possibly would not ”hold up.”  But consider your paycheck, do you want to try and fight it?  I can read all kinds of articles on why these social media policies are ridiculous, but is enough written about how to gauge your influence on social media as a journalist?

Let’s spell it out.  Your comments on social media are published representations of you.  Do not forget, with each post, you are potentially giving a worldwide audience access.  If you have a bad day and go off, those comments could come back to bite.  That can be the case even if you do a mea culpa, and even if you delete the post realizing you temporarily lost your mind and did something pretty stupid.  As journalists we understand how permanent publishing something truly is.  Yet, so many journalists are posting things online that we would not dare write down on paper.  By typing your thoughts out, instead of just speaking them, you create a permanent record.  It is much harder to pull off a “he said, she said” type of defense.  If you ever are sued, how you act on social media accounts could be brought up to question your credibility.

The point here is not to preach, but to protect.  Social media is such an incredible opportunity for journalists to connect with their audience and each other.  Let common sense prevail.  That way it won’t matter if your station’s social media policy is strict.  You will always showcase yourself in a positive, proactive and professional light.

 

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Charting the new frontier: Some points of reference when exploring social media.

For the past year I have noticed more “buzz” about journalists’ potential pitfalls when using social media, especially when it comes to liability risk, whether your station could claim your personal sites actually have professional implications, and if you have copyright or trademark rights to the material you post.   This leads to debates about whether to use your actual name on a personal account, say what station you work for, even list your job title.  You need to be very careful when using anything that could potentially be claimed as “station owned.”  If you state on your personal account that you are a journalist and work at a particular station, you could run into issues.  Some could argue you are still acting as a representative for that station.  Agents are starting to promote that they can guide journalists on what to do to keep the boss from giving you trouble over what you say and do online.  Broadcasting and newspaper companies are coming up with social media policies for journalists (see this public list).  One interesting lawsuit is raising issues about who should get access to journalists’ social media accounts, including followers. The case involves a former editor’s Twitter account with Phonedog.  (Here are two interesting articles for background.  First from USA Today titled “Ex-employee sued over keeping Twitter account”, and Knight Digital Media Center blog’s analysis “Lawsuit to watch:  Who owns journalist’s social media accounts?”).  This is just the beginning.  We journalists have no real precedent to lean on to keep ourselves out of hot water.  Meanwhile, media companies are urging us to get online, in many cases daily, with blogs, FB pages and Twitter accounts.  Then there’s the crucial need to network and market ourselves personally.  Finally, you can gather a lot of news and source build online.  It’s easy and effective:  But at what potential cost?  Not only is using social media a type of “print”  it can be seen by far more sources than you may realize and basic codes of ethics may not always work.  If all of this seems overwhelming and a little scary, you are not alone.  Recently I, Beth Johnson, the founder of Survivetvnewsjobs.com, have started collaborating with a prominent first amendment and media law attorney, Cynthia Counts (Here’s a list of high profile cases she’s been involved with and her appearances on TV), to discuss what legal risks journalists face when using social media.  Our conversations are fascinating.  Bottom line, a lot is up in the air.  Journalists are charting a new frontier without a map. That’s why we are committed to bringing you a series of articles to help wade through.  Consider this article a cornerstone for what is to come.  We begin by showing you the basic things you need to consider when using social media for personal reasons.

  • Read and understand “terms of use” policies
  • Know that trademark, copyright, privacy and libel laws do apply
  • Consider what statements of opinion are, since they could subject you to liability
  • Be sure you clearly define your relationship to each audience

First, here are some links you need to bookmark:  Twitter’s terms of service , trademark and copyright policies. For Facebook, see the pages terms, statement of rights, trademark policy and copyright policy.  Why so many links?  These connect you to the legal terms you are agreeing to each time you post on the site. Counts says not only is it important to look at who has the rights to your posts, but also whether social media sites are given a license to display your tweets and posts simply because you use the site.  With that in mind, these policies can be quite interesting.  For example, under Twitter’s Terms of Service, section 5, “Your Rights” it states:  “You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).”  Then Twitter helps you out, by offering this highlighted tip, “This license is you authorizing us to make your Tweets available to the rest of the world and to let others do the same.

Could this cause serious implications for you?  Consider retweets.  The Twitter policy states“You are responsible for your use of the Services, for any Content you provide, and for any consequences thereof, including the use of your Content by other users and our third party partners. You understand that your Content may be syndicated, broadcast, distributed, or published by our partners and if you do not have the right to submit Content for such use, it may subject you to liability… You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to any Content that you submit.”  The takeaway here, according to Counts, is because you are technically publishing information with your Twitter account, you need to consider personal liability. Generally, journalists can be held liable for any statements they repeat, even if they are simply quoting a source. The Communications Decency Act, however, likely provides an exception for retweets of content created by a third party.  But if you ever modify someone’s tweets and end up changing the meaning, or modify to add your opinion, you could potentially put yourself at risk of liability. (We will delve more into potential risks and defenses to protect you in another article.).  Now Facebook:  First, you need to be very clear that you are not infringing on copyrights. FB has access to your stuff, so more people can see your content than you may realize.  This is explained in FB’s Statement of Rights section 2, Sharing Your Content and Information, “You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings. In addition:  For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.”  Importantly, if you make a fact error and erase it, a third party, possibly not even directly connected with you on FB could still gain access to that printed mistake.  This section delves more into how far-reaching your content can go, beyond your control:  “When you publish content or information using the Public setting, it means that you are allowing everyone, including people off of Facebook, to access and use that information, and to associate it with you (i.e., your name and profile picture).” So FB can distribute your content all over the place, and you are liable if there’s a problem.  Because FB has widespread reach, the potential damages if there is a copyright or liability problem can be greater.

Twitter and Facebook also have copyright and trademark policies.  Both make mention of potential copyright issues with photos.  Think about your personal social media accounts. Do you use any kind of headshot?  Do you have the station and/or photographer’s permission?  Many people use their station’s call letters in their profiles on their various social media accounts.  Could these references lead to trademark issues?   Let’s delve into that idea a bit more.

Counts says where you work is a statement of fact.  Your job description is as well.  So, using them in your profiles are not copyright or trademark issues.  But, she says you need to look at the user agreements. When you do, statement of fact is not as clear cut of an argument.  For example: Twitter goes so far as to spell out how to set up an account that is more personal in nature in its Trademark Policy:  “ An account’s profile information should make it clear that the account is not actually the company or business entity that is the subject of the news feed/commentary/fan account.   Here are some suggestions for distinguishing your account:

Username: The username should not be the trademarked name of the subject of the news feed, commentary, or fan account.

Name: The profile name should not be the trademarked name of the company or include the trademarked name in a misleading manner.

Bio: The bio should include a statement to distinguish it from the real company, such as “Unofficial Account,” “Fan Account,” or “Not affiliated with…”

Background image / Avatar: The account should not use another’s trademark, logo or other copyright-protected image without express permission.

Communication with other users: The account should not, through private or public communication with other users, try to deceive or mislead others about your identity.

How about Facebook?  It allows companies to register trademarks to protect themselves.  Again, in its Facebook Pages Terms, FB recommends having express permission to use logos and/or photographs because of possible copyright infringement:  “All covers are public. This means that anyone who visits your Page will be able to see your cover. Covers can’t be deceptive, misleading, or infringe on anyone else’s copyright. You may not encourage people to upload your cover to their personal timelines.”  In other words, do not use head shots taken by your station unless you have a written license saying you are allowed to publish these images for your personal use.

So, it may not be a trademark or copyright issue to use your station’s call letters, but Twitter and FB’s written policies certainly seem to muddy the water a bit.  Really look over Twitter and Facebook’s policies to make sure any references to or use of material from the station complies. Also read up on what recently happened between Barrett Tryon, a multimedia journalist formerly with the Colorado Springs Gazette, and the newspaper’s parent company, Freedom Communications.  Tryon posted a link on his Facebook timeline to a Los Angeles Times article about the sale of Freedom Communications.  Tryon says the, Gazette told him to remove the post on his personal FB page, citing the station’s social media policy. This article on JimRomenesko.com shows the post by Tryon. If you want to see Freedom Communications’ social media policy, check out this article from Poynter, “New social media rules for Freedom Communications staff.”  (This case is far from clear cut and raises a lot of other issues about journalist’s rights that we also will delve more into.) Tryon ended up resigning and explains why in this article by American Journalism Review.

If this case makes you wonder about your own personal account, here are some key points Counts suggests you consider.

  • Understand your employers social media policy (whether those policies are fair or could stand up in court, like the ongoing debate over the Colorado Springs Gazette’s actions, is another matter we will look into this more later.)
  • Limit followers to close friends and families, ideally not connected to your work in any way.  You may even want to consider using a different name.
  • Refrain from making comments about your work and focus on personal things, instead.
  • Remember that deleting content may not be enough to remove it from cyberspace if other users have not deleted it as well.

The point is you don’t want your employer to be able to argue you were acting as an agent for the station on that particular account.  By focusing on personal things when you post, limiting followers and avoiding talking about your station or showing images from your station, you are creating relationships with followers that clearly show the people who visit your social media accounts do so to stay in touch with you.  They are not following you to monitor your work at the station.  Following these tips should help you keep your personal life truly personal in the social media world with little risk of your employer trying to use what you say or do against you. 

Now you have some reference points as you dive into this new frontier.  Experts in the law including Attorney Cynthia Counts and I will continue adding to your map as we all chart this largely unclaimed new world.  In fact, there is a new section on Survivetvnewsjobs.com called “Social Media Awareness” to inform you of cases, potential pitfalls and defenses to protect you.  Stay tuned!

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Cynthia Counts is the founder of the Counts Law Group.  She has a well-regarded first amendment practice and represents numerous print media and broadcast clients. Her areas of expertise include libel, privacy, contracts, product liability, and employment discrimination.

 

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