Nieman Journalism Lab |
- A proposed Texas law would promote correcting incorrect news, online and off
- OpenNews Learning wants to provide lessons to developers in and out of newsrooms
- Monday Q&A: EFF’s Jillian York on just-in-time censorship, scaling connectors, and the problem with banning porn
| A proposed Texas law would promote correcting incorrect news, online and off Posted: 11 Mar 2013 09:59 AM PDT
Texas State Representative Todd Hunter, R-Corpus Christi, has proposed a “retraction statute” that, if passed, will protect journalists both online and offline and promote truth and efficiency both in and out of court. The Freedom of Information Foundation of Texas and the Texas Press Association assisted Hunter in drafting Texas House Bill 1759 (HB 1759), which would require a prospective plaintiff to give a publisher an opportunity to correct, clarify, or withdraw false content before filing a defamation lawsuit. Under the proposed law, a request for such a correction must be made within a year of the publication and within 90 days of the plaintiff becoming aware of the publication. If the request is granted, and a correction, clarification, or retraction is published “with a prominence and in a manner and medium reasonably likely to reach substantially the same audience as the publication complained of,” the plaintiff cannot be awarded punitive damages in a defamation suit. A publisher who has been asked to make a correction may also ask the person making the request to provide “reasonably available information regarding the falsity of the allegedly defamatory statement.” The requestor “must” provide the information within 30 days or be barred from seeking punitive damages in court. If passed, HB 1759 will promote truth in publication. It will encourage subjects to contact publishers who may have gotten something wrong, encourage publishers to listen to and engage with subjects complaining of inaccuracies, and lead to corrections or clarifications in cases where a publisher determines one is necessary, which will provide the public more accurate information. Out of court resolution would also promote the interests of the judicial system by lessening the burden on courts, which are overburdened with ever-increasing caseloads. This out-of-court dispute resolution provides a stark contrast to defamation lawsuits, which, once filed, encourage publishers and subjects to stick to their guns and fight it out in a winner-take-all battle that is unlikely to benefit any party. At that point, publishers typically adamantly support their legal right to publish what they have published in order to avoid liability, rather than considering extra-legal considerations like fairness and accuracy. Defendants can also accrue serious expenses putting on a legal defense for even a frivolous suit. By requiring plaintiffs to seek a correction and reducing available damages if a correction is made, Texas will deter plaintiffs from filing defamation suits and therefore reduce the potential chilling effects of such suits (Texas has already expressed its commitment to preventing such chilling by passing a strong anti-SLAPP statute). Additionally, given the strong First Amendment protection for speech, which requires that actionable defamatory statements be made at least negligently (Gertz v. Robert Welch, Inc.), and in many cases with actual malice (New York Times Co. v. Sullivan), plaintiffs often expend significant resources and are ultimately unsuccessful in obtaining damages or compelling publishers to remove even factually false content. Encouraging publishers and subjects to resolve disputes outside of court therefore has significant benefits for defendants, plaintiffs, and the public. Given the broad benefits of Texas’ proposed retraction law, it is especially positive that the bill explicitly protects online speech by both media and non-media defendants. It “applies to all publications, including writing, broadcasts, oral communications, electronic communications, or other forms of transmitting information.” In a case regarding online content a correction, clarification, or retraction is published with appropriate prominence and in an appropriate manner and medium if it is appended to the original publication. Many of the approximately 30 states that already have retraction statutes on the books do not currently protect online speech. For example, Wisconsin’s retraction law only applies to “newspapers, magazines, and periodicals.” And in It’s in the Cards, Inc. v. Fuschetto, the Wisconsin Court of Appeals held that this language did not apply to the Internet, leaving the “legislature to address the increasingly common phenomenon of libel and defamation on the information superhighway.” The Mississippi statute refers to “a newspaper…radio or television station,” and has not been interpreted to apply to online publications. Similarly, the California retraction statute covers “publication of a libel in a newspaper, or of a slander by radio broadcast.” California courts have not addressed whether the statute could apply to online speech but have interpreted the statute narrowly; In Condit v. Nat’l Enquirer, Inc., a federal court in California held that the statute’s protections “are limited to publications which engage in the immediate dissemination of news.” In other states, courts have applied statutes that do not expressly cover the internet to online speech. For example, in Alvi Armani Med., Inc. v. Hennessey, a court applied Florida’s retraction law, which applies to “publication or broadcast, in a newspaper, periodical, or other medium,” to online speech, though it implied that the statute might not cover an individual online speaker rather than a company “which provides information to the consumer public.” In Mathis v. Cannon, the Supreme Court of Georgia held that the Georgia retraction statute, which covers “a regular issue of the newspaper or other publication,” applies to online speech. The court noted that that construction was preferable to one limiting the statute to traditional print media because:
HB 1759 law serves the same crucial functions. It will promote accuracy in reporting while saving plaintiffs and defendants significant expense and unburdening the courts. And it is particularly forward thinking in that it provides the same rights to all speakers as it provides to the traditional media, therefore “strik[ing] a balance in favor of uninhibited, robust, and wide-open debate” both on and off line. This is especially important now, as traditional media budgets for investigative reporting shrink, and media’s watchdog function increasingly shifts to independent newsgatherers publishing online. Jillian Stonecipher is a student at Harvard Law School and an intern at the Digital Media Law Project. She served as editor-in-chief of the Daily Texan at the University of Texas from 2009-2010. Photo of Texas state capitol by IPBrian used under a Creative Commons license.  |
| OpenNews Learning wants to provide lessons to developers in and out of newsrooms Posted: 11 Mar 2013 09:27 AM PDT If you ever wanted an “Ask This Old House”-style guide set in the universe of newsroom developers and designers, today you’re in luck: OpenNews Learning is a new kind of online education project that looks at the nuts and bolts of interactive projects through the eyes of the people who built them. It’s the newest arm of Knight-Mozilla OpenNews, the two-foundation collaboration that aims to strengthen the bonds between the worlds of journalism and software development. One of the central ideas behind OpenNews is sharing knowledge, through building community and by putting outside developers directly into newsrooms. OpenNews Learning is an extension of that, designed to help developers (aspiring and otherwise) learn how specific projects were built. Consider it another way to “show your work.” “I really see a major part of what we do at OpenNews is to pull back the curtain on how code works in journalism,” its head, Dan Sinker, told me.
 The first three pieces from OpenNews Learning. Using case studies allows OpenNews Learning to teach by example and provide thorough, insider information, said Kio Stark, who is leading the project. Stark said the case studies can be more effective than coursework because they’re personal and contextual: Rather than read through an antiseptic description of a technology stack, you’ll get the writers candid thoughts and questions. The cases will also have plenty of links to apps, databases, and other source material. “We focused on doing them this way because it makes transparent the thought process and the build process and the places where those kind of challenges are encountered,” Stark told me. The case studies will cover a number of categories, like data analysis, mapping, and data visualization. The lineup of writers include people like Jacob Harris of The New York Times, Miranda Mulligan of Northwestern’s Knight Lab, and Adrian Holovaty, founder of EveryBlock. New cases will be released regularly over the next four months of a total of 50, Stark said. Despite the fact that the bulk of OpenNews Learning’s programming will come from people working in and around journalism, the audience isn’t intended to be restricted to those who’ve seen the inside of a newsroom. Quite the opposite, Stark said: “We are not aiming at developers working in newsrooms, but developers interested in the space of civic data and drawing them into some of the problem sets of journalism.” That fits in with the broader goals of OpenNews, which wants to foster the growth of a broader community of hackers active in news or areas that are journalism-adjacent. That’s one of the reasons OpenNews Learning is going to live on Source, where it will compliment the discussion and code already being shared. Sinker said Learning was originally going to be another independent arm of OpenNews, alongside the Knight-Mozilla Fellowships, hack days, and other programs. Sinker said the growth of Source shows that the ranks of the hacker-journalist are growing. OpenNews Learning can only help reinforce that. “A lot of what motivated the overall additional community emphasis of OpenNews was the realization that this community of people writing code in journalism is, to borrow an overworked term, at a tipping point,” he said.  |
| Posted: 11 Mar 2013 08:51 AM PDT Jillian York sees free speech issues from a global point of view. The director for international freedom of expression at the Electronic Frontier Foundation, with significant experience in the Arab world, she writes and teaches about navigating a world where censors and those who want to evade them are in a constant arms race — technologically, legally, and politically. Before joining the EFF, York worked at Harvard’s Berkman Center for Internet & Society, where she contributed to the OpenNet Initiative. She writes a column for Al Jazeera where she regularly analyzes current events through the lens of Internet freedom. Lately, she’s been warning us about the danger of talking smack on Facebook in the Middle East and preparing us to think about protecting ourselves from Google. When we spoke — over a fuzzy, international Skype line — I asked her about increasing regulation, declining freedoms, social networks, and how traditional journalists are adapting to the digital reality. O’Donovan: John Wihbey wrote last week for the Lab about a study out of the London School of Economics and the BBC called “Who’s Reporting the Protests?” that talks about converging practices of citizen journalists and the traditional media — what they’ve taught and what they’ve learned on the ground. I’m curious about what you’ve seen of that. York: I haven’t seen that study, but I think there is a temptation when covering conflict to give a bird’s-eye view, and social media has changed that, for better or for worse. When you’re, for example, a foreign journalist going into Cairo and reporting from Tahrir Square, there were some really powerful images of journalists hiding in their hotel rooms. I think it was Anderson Cooper saying, “Oh, I’m in this hotel room with this other journalist and it’s so dangerous and we’re crouched down.” But then I would look at Twitter and see someone from the other side of Cairo saying, It’s calm here. So I think it’s enabled us to get a more well rounded view. There’s certainly a place for both traditional and citizen journalism in those scenarios because, really, it’s giving us a fuller picture — often the traditional journalist is better able to contextualize. But, with that in mind, I think it’s kind of misleading to continue reporting from a central location and trying to represent that as the broader locations. So i think one of the things I’m seeing shift a little bit is a little more admission or recognition that the traditional journalists’ point of view is just one piece of a larger puzzle. I think one of the ways that they manage is by pulling social media into their reporting. I think Robert Mackey at The New York Times does a great job of this. He’s a professional journalist, he’s giving us neutral context, but he’s also pulling in key tweets from key players in certain spaces. I think he does that a lot more than other folks I’ve seen, and it’s amazing to see the difference between that and CNN in 2009 during the Iran elections, when they were literally just scrolling random tweets without context. O’Donovan: If a journalist came to you and asked how do you learn which are the important tweets, or who are the important players, what would you tell them? If you’re learning about a conflict for the first time or entering a new place — how do you immerse yourself in that network and get an understanding of what the important nexus points are? York: Ethan Zuckerman has done a lot of work on this. I’ve played this role myself before. I’m someone that’s straddled both worlds when it comes to Egypt and the U.S. I’ve spent a lot of time there, I have a lot of contacts there. When the protests originally broke out, I was getting a lot of calls from journalists who knew that about me asking: Who is a good person to talk about, you know, the Internet being shut down? Can you connect me to whomever? And then it sort of goes viral from there. So let’s say I connect that journalist to someone who is in Tahrir Square at that minute, and then that person can help that journalist venture out into the rest of their network. The thing is, it’s not very scalable — so I wouldn’t go so far as to say that this is the future of journalism. But I do think that bridge figures who are outsiders can often help provide that context and sort of guide the journalist toward a broader cross-section of people. That’s not to say those people are going to be definitely representative. For example, when I was getting those calls I was never able to, say, connect a journalist with someone who was in favor of Mubarak, because I simply didn’t know anyone like that. But I was able to say, this person is a blogger, this person is an activist against military trials — and allow the journalist to delve into it from there and figure out the network. O’Donovan: Do you see traditional journalists getting more comfortable with that? York: Definitely. I’ve talked to a lot more people who’ve played this role. There was a period where it felt very alone when I was getting these calls constantly, and now it doesn’t happen so much anymore. And I see other people who are doing that for Syria, for example, where I don’t have as many contacts. But I think there is still a risk in that bridge figures are not always neutral. I know that I’m not always neutral — I try to at least provide the context to journalists, to say, this is not a representative sample. So it can be tricky — I think there is still work to be done around neutrality. O’Donovan: You’ve said you’ve seen on the ground that there is less freedom and more censorship. Can you talk about how you’ve seen that developing? York: In 2009, Alec Ross called 2009 the worst year for Internet censorship that we’ve ever had. At the time, that was true — things were getting worse. Iran was doing what we call just-in-time censorship, where they block a site just prior to an election period or a protest for the sole purpose of just keeping information from spreading during that time period. Obviously, that kind of censorship is more palatable to the population, because at least they know they’ll get Twitter back eventually. At the time, that was terrible, but all I can say is it’s only gotten worse from there, and now I would call 2012 the worst year. We’ve seen not just the traditional blocking of websites like China does, or like Iran does, but now we’re seeing governments putting essentially viruses or malware onto the computers of activists to track what they’re doing. We’re seeing a lot more of that just-in-time censorship, and we’re also seeing some more sinister stuff, where governments are not blocking websites but going after people who dare to speak out. That continues to be the case in Egypt, for example, where — despite the fact that there’s a court order to block YouTube and pornography — the Internet is not yet censored, but they still have arrested people who say certain things on Facebook or on Twitter. The sheer number of tactics has diversified and increased, and that’s what’s getting scary. It’s becoming a lot harder to defy and keep track of and fight against. O’Donovan: In a recent article in The Atlantic, you and Trevor Timm quote a line from Evgeny Morozov’s Net Delusion about the danger of becoming “numb” to “potential regulatory interventions.” Can you explain to what extent you feel we’re unaware of the risks to our freedoms? York: So, for example, in the European parliament just yesterday, there was a call from a parliamentarian to block pornography on the Internet. Ignore the fact for the moment that porn is legal, and that therefore calls to block it would be problematic anyway. The fact is that pornography has never been something that people can define, so when you put a mechanism in place to block something like that, it creates a system that is ripe for abuse. So, sure, today I might just block child pornography, and that might be okay because that’s illegal. But then tomorow, I might add legal pornography, and then the next day, pictures of naked women. And then the next day, ban the word “sex” from Google searches. Part of the problem is, once you put those mechanisms in place, unless you have incredibly stringent oversight and transparency and accountability for the actions around that, it becomes a quick and slippery slope. So far, there has not been a single government that’s gotten this right. Australia tried to put a black list in place on certain obscene content, and they ended up accidentally blacklisting the websites of a dentist and a tailor. These systems are not perfect. O’Donovan: How do you see that slippery slope applying in some of the places where you’ve been on the ground, or in teaching people how to report in those places? York: I just did a training a few weeks ago in Cairo for a group of journalists who were reporting on some of the ongoing censorship there, and one of the things that they didn’t know is that encryption is banned in Egypt. As a journalist, or as a lay person, you might not understand it, but in Egypt it is prosecutable. What that actually means is that by allowing Egyptians to use encrypted Gmail by default at this point, Google is technically breaking the law. That isn’t necessarily the intent behind the law — it’s hard to say what it was, it’s a law from 2003 — but when these laws were put in place without context, Egyptian users are breaking the law without realizing it. So that’s one argument to be acquainted with the laws, but it’s also a suggestion that the laws were created without an understanding of how the Internet would look in the future. It’s the same thing as what’s happening — and I’m not as qualified to speak about this because I’m not an American lawyer — but, it’s an analogy to what’s happening in the U.S. right now with the Aaron Swartz case, where you have a law that was created early on without context of what the Internet would look like. O’Donovan: I was reading your blog about the training you were doing in Cairo, and you seemed surprised by what these young journalists were interested in. Can you share what they felt to be the most valuable information? York: I went in with the idea that they wanted to talk about international Internet regulation and what implications of online service providers like Facebook and Google was. What I found was that people were less interested in that and more interested in learning about digital security. In the future, I guess those things will be complementary, but regardless, that was one of their strong interests. They were also interested in copyright law, and that was surprising to me because sometimes you have countries like Egypt, where there’s not a strong regulatory culture around issues like copyright, and the only way that that’s applied is through the DMCA [Digital Millenium Copyright Act] on sites like Facebook and Google. I was asked one amazing question by a journalist that I’ve never been asked before. He was wondering if a government can censor online radio. It hadn’t occurred to me to think about what sort of mechanism would be required in order to do that. Sure, they could shut down the website, but I mean, what if he was breaking the law on the radio — what if he was encouraging people to commit violent acts? Or not him but if someone was doing that, what would be the mechanisms possible for the government to step in? And I was baffled. I didn’t have a good answer for that. O’Donovan: Where do you see the work of the Electronic Frontier Foundation and your work going in the next few years? York: One thing that I’d love to emphasize, particularly as I was just doing a panel with some folks from there in Geneva, is that we need to start looking more toward Sub-Saharan Africa. As Internet penetration increases there and youth increases and more people start getting online everyday, we’re going to start seeing governments concerned about some of the things happening in Nigeria around regulations, for example, and Ethiopia around surveillance. So I think this continent that we’ve sort of ignored we need to start paying attention to. Another thing I would say is thinking more about technologies. Yes, there are a number of regulatory fixes and paths we can take, but there’s also a technological response to repression of free expression. So, for example, circumvention technology is heavily funded right now by the U.S. government for use in other countries. That’s a really important thing to be thinking about. If we can’t solve the problem using regulation, how do we empower users to gain access to information and protect themselves from surveillance? O’Donovan: Do you see the media landscape shifting there? York: I’m not as familiar with the media landscape in Africa, but if you look at the Middle East, for example, the media landscape is changing dramatically. In countries where revolutions have started, not only do you have a rise in revolutionary or activist journalism, but you also have a rise in conservative journalism — a rise in journalism from places that you wouldn’t expect. I think almost all of the major newspapers in Egypt are based in Cairo. A lot of the increase in citizen media allows us to see more of different parts of the country that we wouldn’t have otherwise. O’Donovan: And you see that diversity of voices increasing despite rising regulation? York: I certainly hope so. Obviously, you always have exceptions to that. I think things might be getting worse in Iran, and definitely in Syria. But in large part, people find ways to get around censorship. Even with these regulations on the rise, I think you’ll still see an agitation from citizen journalists, and to some degree, professional journalists. O’Donovan: How do they get around censorship? York:The thing is that governments haven’t really yet found a way to rapidly follow the creation of new sites. So you can, even if your website gets blocked, create another one at the end of the day, or mirror it so it’s available from a number of different URLs. So people find ways to defy government censorship, as they always have. As governments become more sophisticated, I think the fear is that they will go after journalists one by one, which is terrifying and not completely unheard of. But the other fear is they’ll find more ways to rapidly block websites. But then we think of something new. Technology almost always catches up. Photo by David Sasaki used under a Creative Commons license.  |
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