Legal considerations for responding to takedown demands

by Mark Goodman
When a student news organization receives a demand to remove content from its website, consider a handful of legal considerations as well journalistic and ethical ones.

The first question should always be, what’s the reason for the demand?
• Is it based on a claim the content in question was factually inaccurate and damaging to someone’s reputation (in other words, libelous)?
• Or is it based on the fact the content in question is embarrassing to someone and reveals information they would rather not have exposed (an invasion of privacy)?
• Or perhaps the claim is the material infringes on someone else’s copyright?
• Maybe the complaint is the person making the demand just doesn’t like the content – it’s offensive to them or conflicts with their perspective.

The last of these four common reasons for a takedown demand is the easiest to dispose of, at least from a legal perspective.  A news organization never has an obligation to remove content simply because someone doesn’t like it.  Unless the individual making the demand is alleging an identifiable person has suffered a personal injury as a result of the content, there typically is no risk of a legal claim to be concerned about.

If the claim is “you’ve infringed my copyright,” the demand should be taken seriously.  Did the student news medium obtain permission to use the content before publication?  Or is the use of the content what the law refers to as a “fair use?” (Generally, using a small part of a copyrighted work for news or commentary about the copyright owner of that work will be considered a fair use.  For example, using an image from an album cover to illustrate a review of that album will always be considered a fair use.)  Remember, the fact you didn’t intend to infringe a copyright or that you didn’t understand what copyright protected is not a defense.  If your use represents a copyright infringement, your obligation is to take the work down.  The Student Press Law Center has excellent resources available about fair use and copyright infringement.  You can find them here: http://www.splc.org/knowyourrights/legalresearch.asp?maincat=6

Many takedown demands are the result of individuals believing their privacy has been invaded.  Even if the content has been up for years, they may believe the fact they face consequences from it now (being asked about it by prospective employers, for example) is justification for demanding its removal from your website.  The good news, legally, is if the content was not an unwarranted invasion of privacy at the time it was published, it can’t be one subsequently.
• For example, if your students accurately report a student was arrested and charged with vandalizing the school, that content is protected from an invasion of privacy claim. Accurate reporting about allegations of crime and other legal matters will almost never meet the requirements for an unwarranted invasion of privacy.
• But, if the information did constitute a legally actionable invasion of privacy at the time of publication, takedown is a necessary step. For more information in this area of the law, see: http://www.splc.org/knowyourrights/legalresearch.asp?id=29

Concerns about damage to reputation are one of the frequent justifications raised by those who demand content be taken down.  Using the example above, a student arrested and charged with the crime of vandalizing school property may raise the fact he was subsequently found not guilty of the crime or perhaps even the charges were dropped.
• Again, if the information was accurate and not legally actionable at the time of publication, new facts won’t remove the legal protection for having published it in the first place.
• And if the complaint isn’t about inaccuracy but rather just about embarrassment, there is an easy defense: truth.  The publication of factually accurate information at the time of publication can never be the basis of a successful libel suit.
• For more information about libel, see http://www.splc.org/knowyourrights/legalresearch.asp?id=27

One other important legal consideration when responding to a takedown demand, especially when the requested remedy is just to remove a part of a story or other content: you may be opening the door to potential lawsuits by others.  Lawsuits for privacy invasion and libel must be filed within a set time frame after the content was first published (1-2 years in most states). This is called the statute of limitations. Most courts have concluded that the clock starts running on the date the content was first posted online, not when the people mentioned in the story first learned of it.  *But if you materially edit a story that appears on online, that can start the statute of limitations clock all over again.

The best legal advice: only respond to takedown demands when you have a solid journalistic or legal reason for doing so.  But when you have published legally unprotected content, you can lessen the likelihood of being sued or a significant damage award by removing the offending content from your website.

The Student Press Law Center offers a detailed analysis of responding to takedown demands.  You can find that here: http://www.splc.org/pdf/takedowndemand.pdf

Mark Goodman is the Knight Chair of Scholastic Journalism at Kent State University and the former Executive Director of the Student Press Law Center.

See more for the complete package:
Evaluating ethical choices
Decision models
10 steps to a “Put Up” policy
Resources
Handling online comments
Takedown demands?