A report on digital media’s legal issues finds they are, mostly, not new

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Nicole Levy

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A report from Harvard's Digital Media Law Project out today found that the legal issues affecting online news organizations aren't that different from those of any other news outlet.

"There remains much that has not changed in the nature and needs of journalism as it flourishes online. Rather, what has changed is journalists’ monetary ability to obtain counsel for the sorts of issues that these ventures have always faced," the study's authors, Jeffrey Hermes and Andrew Sellars, write.

The report, "The Legal Needs of Emerging Online Media: The Online Media Legal Network After 500 Referrals," drew conclusions from the more than 500 cases handled by the project's Online Media Legal Network (OMLN), which has offered pro-bono or low-priced legal services to digital publishers and independent journalists since 2009.

The data showed that most clients came to the OMLN for lawyering that both online and offline organizations require, such as contract drafting, the development of website terms of use and privacy policies, corporate formation, and mergers and acquisitions.

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As for individual clients using modern technology to gather and publish news, the OLMN found they are more susceptible to litigation than organizations. About a quarter of matters brought by individual clients required a response to a legal threat, compared to only three percent of matters for organizations.

Defamation claims—the most common legal threat OLMN clients face—can prove costly for media defendants, especially independent journalists: juries can award plaintiffs hundreds of thousands, or even millions of dollars, and there are still hefty legal fees even if the case never goes to court, the study said.

Reporters covering a particular business or industry, and writing for a consumer audience, are particularly susceptible to litigation, the study found. One issue they encounter is trademark law, which covers the company names and logos journalists use frequently when reporting on those companies. "Most jurisdictions...rely on the general 'likelihood of confusion test,'" the report explained. "As a result, there has been a disturbing rise in use of trademark law to suppress critical speech that is otherwise protected through other content liability doctrines."

Overall, the Digital Media Law Project was pleasantly surprised to find that most OLMN clients were proactively considering their legal needs, rather than requesting immediate responses to legal threats.