Journalists and documentary filmmakers often follow parallel paths when stalking their similar prey. They interview witnesses, build stories around characters, dig into the past and compile facts. Along that landscape, they often encounter the same obstacles, and a common path can help get them to their destinations.
This guide is designed to help filmmakers find information and make decisions that journalists make every day. Whether it be questions of what rights the First Amendment guarantees, what rights to privacy people can expect or what ethical decisions must be made when telling the stories of someone else’s life, this guide lays out a way to find that information.
Each section begins with a brief summary of the topic, highlighting the main points to know and detailing some specific steps a filmmaker might take when encountering that topic. Following the summary, there are links to resources to learn more about the topic, read additional opinions or different points of view or find forms or other tools to facilitate field work.
A wonderful companion to this guide is the one put together by Doc Society. It’s called Safe + Secure and can be found by following this link.
This document is meant to grow and change with the times. Like any good journalism, the copy will continue to be edited and resources updated and expanded. A list of credits appears at the end of the guide. Please contact the editor with requests or suggestions for the future of the guide.
NOTE: This guide is intended to provide background and basic knowledge about journalistic norms and practices. It is not meant to be a legal handbook or a substitute for competent legal advice. Filmmakers should consult their own attorneys when they have serious questions regarding the legal ramifications of their work.
Table of Contents
Part One: First Amendment Rights and Guarantees
Part Two: Public Information, Sunshine and the Freedom of Information Act
Part Three: Respect, Privacy and Freedom from Harm
Part Four: Transparency, Accountability and Independence
Part Five: Copyright Laws, Fair Use, Licensing and Insurance
Part Six: Journalism Organizations and Resources
Part Seven: Journalism Organizations’ Codes of Ethics
Credits
Part One: First Amendment Rights and Guarantees
General freedoms
At the time of the American Revolution, a number of the legislatures in the first states called for freedom of the press as a check on government despotism. These calls had little legal standing, often being seen as an admonition to state leaders rather than true statutes. As the framers developed the federal Constitution, Anti-Federalists had grave concerns about the lack of protections for civil liberties in the document. In the years immediately after the ratification of the Constitution, the Bill of Rights was written and became Amendments One through Ten of the U. S. Constitution.
The freedoms that citizens, residents and visitors to the United States have to gather information, report and publish that information for an audience come from the First Amendment. It reads:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The freedom of speech and of the press stated in the amendment have been interpreted by the courts in the more than two centuries since the ratification of the amendment. Specific freedoms (and limitations) will be addressed throughout this guide, with the latest case law included, as well as links to more information.
The Heritage Guide to the Constitution – The Heritage Foundation
Original Meaning: Freedom of Speech or of the Press – The Federalist Blog
Freedom of Speech and Freedom of the Press – Lincoln University of Pennsylvania
Documentary and the Law – International Documentary Association
The 4th Estate as the 4th Branch – TeachingHistory.org
An Overview of the First Amendment – Laws.com
The History of the First Amendment – ThoughtCo.
Filmmaking as free speech; Filmmakers as journalists
While the First Amendment rights of freedom of speech are guaranteed to all in the United States—not just to those who identify as journalists—the courts have not always supported the work of filmmakers as protected under the First Amendment. As motion pictures became a commercial success in the early part of the 20th Century, the U.S. Supreme Court ruled in 1915 in the Mutual Film Corporation v. Industrial Commission of Ohio case that cinema is a purely commercial business and was therefore not protected under the free speech provisions of the Ohio Constitution (which guaranteed freedoms similar to the First Amendment). That ruling allowed the heavy censorship of films and led to the infamous Motion Picture Production Code—or Hayes Code—that exerted strong control over motion picture content.
The Mutual decision was overturned by the Supreme Court in 1952 in the Joseph Burstyn, Inc. v. Wilson case, often better known as the “Miracle Decision,” due to the title of the film in question. The court ruled that motion pictures are aesthetic expressions due protection under the First Amendment, overturning a New York law.
A more complicated picture develops when considering the guaranteed freedom of the press. Just who qualifies as a member of the press has become a major debate in the last two decades, as legacy media give way to new forms of publication and distribution. This is important because laws meant to protect journalists at work may not protect documentary filmmakers following the same procedures as their reporter cousins. In the 2011 case against filmmaker Joe Berlinger regarding his film Crude, a U.S. appeals court ruled Berlinger did not hold reporter’s privilege to protect him from turning over his film outtakes because he did not have the editorial independence needed to make him a journalist. That ruling puts filmmakers on weak footing unless specifically protected by shield laws granting that privilege. There will be more on shield laws in a later section of this guide.
As most of the First Amendment guarantees addressed in this section are available to all in the United States, filmmakers are covered under the protections journalists have won.
Mutual Film Corp. v. Industrial Comm’n of Ohio, 236 U.S. 230 (1915) – Justia
Mutual Film Corp. v. Industrial Commission of Ohio – FindLaw
Mutual Film Corp. v. Industrial Commission of Ohio (1915) – The First Amendment Encyclopedia
Joseph Burstyn, Inc. v. Wilson – Legal Information Institute
Significance: Burstyn v. Wilson – National Coalition Against Censorship
Obscenity Case Files: Joseph Burstyn, Inc. v. Wilson (The Mircale Decision) – CBLDF
Freedom of Speech and the Movies: Joseph Burstyn, Inc. v. Wilson – Michael McVey
The “Miracle” Case and After – Censorship in Film
How the Movies Became Speech – Samantha Barbas
Court rules against Joe Berlinger on ‘Crude’ – Variety
A Filmmaker’s Quest for Journalistic Protection – The New York Times
Sundance 2015: Documentary or Journalism? – Center for Media & Social Impact
The Journalism Shield Law: How We Got Here – FreePress.net
Feinstein wants to limit who can be a journalist – Watchdog.org
Who’s a journalist? – New York Post
Who’s a journalist? Does that matter? – Mediactive
In the age of new media, who counts as a journalist? – Reporters Committee for Freedom of the Press
Invoking ‘reporter’s privilege’ for documentary footage – Columbia Journalism Review
Recording in public spaces
The law allows a filmmaker on public property to record film or video of anything in plain view from that property. That includes government buildings, children, private people and nearly anything or anyone else seen from that vantage point (there are possible civil claims from using a long lens to shoot into a private space, for instance). Laws vary in different states regarding the recording of audio from people in public places. Some restrict it under state wiretapping laws. But the bottom line is that it is legal to capture video images from a public place with almost no restrictions.
Filmmakers most often run into problems with police telling them they cannot shoot video of what are sometimes considered high-risk targets for terrorism: train stations, oil refineries, schools, etc. In all these cases, as long as the camera is shooting from a public space from which anyone coming or going can see these facilities, it is legal to shoot them. But police may be uninformed about the law regarding these places, so the filmmaker may still end up at odds with the authorities.
If police order a filmmaker to stop shooting, the filmmaker should politely assert the right to shoot in that place. Police can claim a filmmaker is interfering with law enforcement operations, which is an offense for which one can be arrested. If an officer makes that claim, the filmmaker should stop shooting and step back to avoid arrest—the courts are more likely in these cases to believe the officer’s claim than the filmmaker’s. In most cases—unless the filmmaker is out to get the confrontation on camera—it is better to back off from the threat of arrest and try to regroup to shoot elsewhere.
Police may not generally demand a filmmaker turn over media for confiscation or destruction, or demand to inspect the camera and view the footage without a warrant. Searching a camera by inspecting its video contents usually requires a judge to issue such a warrant.
If a filmmaker is stopped or detained by police while working, she should always remain polite and calm. The filmmaker should never physically resist a police officer. If stopped, the filmmaker should ask if she is free to go. If the officer says the filmmaker cannot go, then she is officially being detained, which requires the officer to have a reasonable suspicion the filmmaker has committed or is about to commit a crime. Until the filmmaker is officially detained, she is considered to be cooperating voluntarily with police. If detained, the filmmaker should state she has the legal right to be filming where the incident took place and state she does not consent to any search or destruction of any contents on the camera. If the officer reaches for the camera—even after that statement of non-consent—the filmmaker should not resist and should once again state she does not consent to the search. Doing otherwise could result in a resisting arrest charge that would be prosecutable.
First Amendment Primers – The First Amendment Center
Criminalizing Photography – The New York Times
State-by-State Recording Laws – MSI Detective Services
Recording in Public Places and Your First Amendment Rights – Videomaker
Homeland Security Bulletin on Photographers and Federal Buildings – Photography Bay
Photographing the Exterior of Federal Buildings – New York Civil Liberties Union
‘See, Officer, I Can Too Take That Picture’ – The New York Times
A Major Victory for the Right to Record Police – The Atlantic
A First Amendment right to record the police – The Washington Post
Tape-recording laws at a glance – Reporters Committee for Freedom of the Press
State by State Guide – Reporters Committee for Freedom of the Press
What Are Your Rights as a Documentary Filmmaker? A Primer on Permission – No Film School
Recording police activity
No one can deny the impact that video of police misconduct has had on the current debate about police use of force and the criminal justice system in general. Police often intimidate or arrest those attempting to record their activity, sometimes confiscating or destroying camera equipment in the process. What is still very much in the courts is just how absolute a right people have to record police action. Recent cases have strengthened the claims from those who say the right to record police doing their job exists as a First Amendment freedom and a check on the power of a governmental agency. State laws vary, but two-thirds of states have specific laws allowing the recording of police. It is always wise to know the law in the specific state in which the recording will take place. In most states, secret recordings do not carry as many rights as public recording.
If approached by the police, the person recording should respond to questions. It’s often best to say something along the lines of, “Officer, I’m not interfering. I’m asserting my First Amendment rights as a documentary filmmaker to record you.” Be prepared that police officers may incorrectly assert that only “journalists” have First Amendment rights.
If asked for identification, the filmmaker should know if the state in which she is filming requires her to produce one. If there is no law requiring a person to produce identification, it is not necessary to show an ID. As noted in the previous section, the filmmaker should ask is she is being detained or if she is free to go. If told she is free to go, then the filmmaker can leave. She can also choose to continue to shoot in the same space, though that risks an escalation of the confrontation. If she is detained, the filmmaker may still not have to show an ID, but may choose to do so to avoid more escalation. In no case should the filmmaker lie to the police.
If police say that recording them is against the law, it’s good to know the local laws and recent court rulings and politely quote those to the police. The filmmaker should follow any instructions to move or step back so that she is not violating a lawful police order—an offense that can lead to a prosecutable arrest. If the filmmaker feels she has moved beyond a reasonable distance and completely out of any area that could interview with police, she should politely assert that to the police if they continue to ask her to move.
If told to stop filming or be arrested, the filmmaker can decide whether to comply, knowing she may very well be arrested if she does not. If put under arrest, do not resist. Continue recording to capture the arrest, if possible. Use your right to remain silent and contact an attorney with whom you have already made prior arrangements in case of an arrest.
Appeals court: First Amendment gives public right to video police – Fort Worth Star-Telegram
A Major Victory for the Right to Record Police – The Atlantic
7 Rules for Recording Police – Reason
Know Your Rights: Recording the Police – American Civil Liberties Union of Connecticut
Know your rights: Police can’t order you not to record them – KGW-TV
Recording the Police: Legal? – Nolo.com
Recording in government buildings
In general, the law allows anyone to film or take video in the parts of public buildings that are open to the everyday coming and going of the public, subject to reasonable time, place and manner restrictions. That phrase is vague, but shows the difference of a person’s right to capture video in the lobby of the post office versus that person’s right to march into the postmaster’s office and shoot video of her at her desk. Public spaces in public buildings don’t require any special permission for people to enter, so—in most cases—they do not require special permission for someone to film or record there. Keep in mind that the time, place and manner restrictions require a shoot must not be disruptive to the operation of the office—and it is often too easy to use that as justification to eject unwanted camera people.
For shoots where a conflict at the location for the shoot is not expected, it is often better to obtain permission before shooting. That is not a legal requirement, but rather, a way to make the assignment go more smoothly.
There are some restrictions on the books, however, that do require prior permission. For instance, the latest Homeland Security restrictions allow photography inside federal buildings (not otherwise off-limits by specific laws) only with the permission of the tenants of the space to be photographed.
Hospitals and healthcare facilities face their own challenges protecting the privacy of their patients’ health information under the Health Insurance Portability and Accountability Act (HIPAA). While this act will be covered more in a later section, it is important to note that HIPAA requirements have pushed nearly all public healthcare facilities to a level of security that will prohibit filming or video recording nearly everywhere in their premises. Permission is almost always needed to enter public hospitals and healthcare facilities with cameras.
Courthouses and courtrooms are a specific case handled differently than other public buildings. They will also be addressed in a later section.
Finally, in a post-9/11 world, airports provide a complex space for shooting video. That will be addressed in the next section.
Photographing the Exterior of Federal Facilities – U.S. Department of Homeland Security
Post-9/11 concerns
Anyone who travelled by airplane prior to 9/11 knows how much procedures at the airport have changed since the terror attacks. In the days before Homeland Security and the TSA, flyers moved more freely in the airport, as did journalists and filmmakers shooting film or video. The stricter security rules that came following the September 11 attacks have altered how we travel and—in some cases—how we can record how we travel.
Despite the fact it seems that TSA rules would be the strictest when it comes to airport recordings, the agency is fairly open about recording around its facilities. The agency does not expressly prohibit filming or recording at or around its screening facilities in airports. Its only restrictions are that the recording does not impede the flow of the screening process for others and that what is appearing on monitors is not captured.
But the airport situation gets more complicated when the interests of state and local jurisdictions come into play. Some state and local jurisdictions have gone beyond the TSA’s basic standard and have enacted their own restrictions on airport photography and recording. The only way to know the law for sure is to check on local and state laws for each jurisdiction before recording takes place.
Once at the gate area and on board the airplane itself, the rules change. The airplane is the private property of the airline and courts have recognized the gate area falling under the private control of the renting airline. That means each airline’s rules about photography and recording now come into play, superseding any governmental laws there. Nearly every airline has written policies prohibiting photography and recording of its property and employees without consent. These rules are very unevenly enforced, but when enforced, can lead to the removal of the offending photographer from the plane or the airport property.
One final vestige of 9/11 concern can be found when filming or recording at an ever-lengthening list of potential terrorist “targets.” News crews and filmmakers have been asked to leave or even detained by authorities after recording near railroad yards, oil refineries, water treatment plants and more. Local authorities are usually the agency that tries to stop recording around these sites, but they often quote federal regulations as the reason for the stop. As stated in an earlier section, any recording from public spaces of anything that can be seen from those public spaces is legal. Local authorities are often misinformed and any filmmaker approached should follow the steps cited earlier to assert his right to shoot there. One possible exception could be around certain farming or livestock operations in states that have enacted so-called “Ag-Gag” laws meant to limit animal rights activists on or near agricultural property. These laws prohibit much shooting access in and around those agricultural facilities. Journalism and animal rights groups have fought these laws in court as being unconstitutional and have won some important cases. Still, filmmakers must check in the states in which they plan to film to see if these laws exist. Eight states have such laws at this point, with more considering legislation to establish them.
Can I Take Photos at the Checkpoint and Airport? – Transportation Security Administration
Photography & TSA Airport Security Checkpoints…Its OK! – Flying with Fish
If Threatened With Arrest When Recording Video at TSA Checkpoints… – CSO
Watching the Watchers: Is Recording Airport Security Illegal? – New Media Rights
Shooting video at a TSA checkpoint? Here’s what you should know – CNN
Airlines Have Rules About Taking Photos, Video on Planes – U.S. News & World Report
Photos on a Plane? Take Note of the Fine Print – The New York Times
Thrown Off a United Airlines Flight For Taking Pictures! – Live and Let’s Fly
What to Do If You’re Threatened Over Onboard Photography? – One Mile at a Time
American Airlines Updates Airport Photography Policy – One Mile at a Time
Photographers Becoming Security Concerns – National Public Radio
More Made Up Laws Regarding Oil Refineries – Boy With Grenade
Teens have brush with law over photographing refinery – Helena Independent Record
Taping of Farm Cruelty Is Becoming the Crime – The New York Times
What Is Ag-Gag Legislation? – American Society for the Prevention of Cruelty to Animals
Judge Strikes Down Idaho ‘Ag-Gag’ Law, Raising Questions For Other States – National Public Radio
Media credentials
Unlike in some other countries, the United States does not license journalists, fearing that practice could lead to restrictions that run afoul of the First Amendment. While journalists agree that is a good thing, it can make it hard for photographers, filmmakers and others to show identification that gives them access to “press only” scenes and events. There are a number of ways for filmmakers to obtain media or press credentials that can ease their way into certain events or scenes.
The simplest approach to obtaining a media press pass is to make one’s own. This is common among journalist organizations both large and small. Anyone with basic Photoshop skills and a laminator can make a card that will work to obtain access to many scenes—a nearly limitless supply of templates are available online. Filmmakers should use the name of their film company as the issuing organization, include a title (“photographer” often gets the most access) and a photo, along with name, address, birth date, etc. This “employer”-issued approach produces a card that will often be all one needs to enter a location that’s being reserved for press only. There’s no reason every filmmaker should not have one of these self-made credentials available for use at all times.
There are some associations dedicated to the First Amendment rights of citizen journalists, bloggers and others sometimes left out of authorities’ definition of journalists. These groups sometimes offer free media credentials as part of membership. Other photography associations offer press passes to their members at little or no charge.
Government-issued IDs add an extra layer of weight to access claims, but come with a bit heavier burden of proof on the filmmaker to obtain them. Local and state jurisdictions have their own procedures to obtain these IDs. They are often free, but sometimes require a small application fee. The biggest hurdle for independent filmmakers is that the passes usually go to representatives of media organizations. Requirements for proof of that organization vary, but a film company that does a lot of journalistic-style work should be able to qualify in many of these localities.
The final type of credential is that obtained to attend and cover a specific event, like a concert, athletic event or political convention. These credentials are controlled by the organizers of the event and are issued at the discretion of those organizers. There is always an application process for these credentials to which filmmakers can apply. It may take some persistence and personal contact with organizers to make a case for granting a credential.
Why Is It So Hard to Get Press Credentials? – FreePress.net
How to Get A Press Pass – Intrepid Freelancer
How to get a press pass as a blogger – upstartHR
A Free Press Deserves Free Credentials! – Constitution First Amendment Press Association
Press Cards for Freelance Photographers – Camerapixo Publishers
How to Get a Photojournalist Press Pass – Knoji
Shield laws and reporter’s privilege
Thirty-seven states now have shield laws of one form or another that allow journalists to protect the identity of their sources. Shield laws protect reporter’s privilege, a legal concept that holds that journalists need to be able to keep sources and other information secret from government authorities for two main reasons. First, sources will be more comfortable speaking to journalists knowing that what they say will not fall into the hands of government investigators. Second, the idea of privilege stems from the need for journalists to be seen as independent from the government. Both of these reasons help support the role of journalists as checks on those in power.
One important note is that there is no guarantee of reporter’s privilege written into the Constitution or the First Amendment, just as there is no federal shield law. The reporter’s privilege concept and what shield laws do exist in the states have risen from court rulings, local lawmaking and governmental procedural rules. Journalism organizations have fought for a single federal shield law for years, but have met resistance from both parties in the White House.
The shield laws that protect reporter’s privilege in the states where they are on the books vary in how much protection they give. Some states grant absolute privilege, meaning a journalist can never be subpoenaed or forced to give the identity of a source to authorities. Some add protection for reporting notes or other information that might lead to the identity of a protected source. Many states put limits on privilege—called a “qualified shield law”—protecting sources in most cases, but requiring reporters to testify to other matters in a case, or lose their privilege altogether should they become a party in the case.
Governments looking to limit the impact of those shield laws have attempted to limit the definition of “journalist” to those working for traditional media organizations. An effort mainly led by the blogging community has worked to expand that definition, including those who do journalistic-style work on their own. Most broader definitions favored by this movement would include documentary filmmakers.
If a filmmaker working on a project receives a subpoena, here are the steps to follow. First, she must not ignore the subpoena. A shield law will not protect a journalist or filmmaker from contempt of court charges or fines. After getting a subpoena, the filmmaker should contact an attorney. Groups like the Reporters Committee for the Freedom of the Press (http://rcfp.org) will help find an attorney with experience in this area. The attorney will work with the filmmaker to determine which, if any, state shield laws or court decisions protect all or part of the material being subpoenaed. If the filmmaker is part of a larger team, the attorney will work with that team to manage the subpoena according to any pre-existing company policies. Material that has already been publicly released—such as a completed film—is usually released to the authorities without question. Unreleased cuts, outtakes, interviews and other material not yet seen by the public may be subject to a refusal to comply with the subpoena. A filmmaker should NEVER destroy any materials once she has received a subpoena.
Attorneys expert in these cases recommend filmmakers set up a plan and policies before ever facing a subpoena. They should find an attorney who will handle the case if the need arises. Develop internal policies for how long outtakes will be kept and when those, notes and other reporting materials will be destroyed, if ever. Finally, all filmmakers should know the basics of the shield laws in the states in which they are working.
Confidential Sources and Information – Reporters Committee for Freedom of the Press
Reporter’s Privilege/Shield Laws – Media Law Resource Center
Differences between State Shield Laws – Weishen Law Project
Federal shield would protect public’s right to know – Society of Professional Journalists
State Shield Laws – Digital Media Law Project
What to do when you are subpoenaed – Reporters Committee for Freedom of the Press
Prior restraint and gag orders
There are few rights journalists have under the First Amendment that have as solid a legal footing as the restriction against prior restraint—censorship of a piece of journalism before it is published. Since the landmark Near v. Minnesota case in 1931, journalists have enjoyed a nearly-bulletproof protection allowing them to publish their work in almost every case. This right extends to filmmakers and the release of their content. This right to publish does not, of course, protect journalists or filmmakers from claims of libel or other suits after the publication of the material. Those are separate issues for post-publication remedies.
While journalists enjoy this strong protection, courts often employ gag orders (or protective orders) to prevent parties to a case from speaking in public—usually specifically to journalists and filmmakers. Judges can issue these orders, claiming to be working to protect the right to a fair trial. Critics say the orders infringe on the First Amendment rights of journalists to cover a court case and on the First Amendment rights of the parties in that case to speak freely. If a judge issues a gag order on a case a filmmaker is covering, the filmmaker should get the order in writing and examine it for the details of precisely what is prohibited. Working right up to the edge of the order is often a way to continue reporting on the case. A filmmaker may seek to challenge the gag order under constitutional grounds. In that case, he should seek out an attorney to file to challenge the order.
Prior Restraints – Reporters Committee for Freedom of the Press
Prior Restraints – University of Oregon School of Journalism and Communication
Government Censorship (Prior restraints) – Reporters Committee for Freedom of the Press
What to do if a court issues a gag order – Reporters Committee for Freedom of the Press
A survey of the law – Reporters Committee for Freedom of the Press
Gag orders on the press – Reporters Committee for Freedom of the Press
Gag orders and the effect on newsgathering – Reporters Committee for Freedom of the Press
Gag Orders – Reporters Committee for Freedom of the Press
How to challenge a gag order – Reporters Committee for Freedom of the Press
Libel and defamation
Simply stated, libel occurs when false or defamatory statements about a person are published to a third person. The First Amendment offers some protection to those publishing the statements, but the case law is complex and states vary on the burden put on plaintiffs and defendants to prove or disprove libel. Libel differs from slander due to its publication. Slander is merely statements spoken to another person.
For libel to exist, there are five elements that must be present. First, a person or persons must be identifiable in what is published to be able to be defamed. That can be through direct identification, where the person or persons are named, or through indirect identification, where the person is not named but can still be identified through what is published. Second is the matter of publication itself. Publication means the wide distribution of the potentially defaming material through any number of means including printing, broadcasting, public showing and more. Third, the content must defame, meaning if must contain untrue statements that hurt the reputation of the offended party or expose that party to ridicule, hatred, mockery or other harmful response. Fourth is the matter of fault on the part of the person publishing the material. That party must be at fault in knowing it was untrue, having malice toward the person about which the statements are made, or negligent in the manner in which the facts were discovered, leading to them being false. Finally, the harmed party must show damage, either directly through a monetary cost or indirectly through loss of reputation, pain and suffering or other harm.
There are four defenses against libel on the part of the party doing the publishing. First and foremost among these is truth. If the material is true, it does not matter if another party is harmed. Truth is always an absolute shield against a libel claim. The second defense is privilege, the right to speak without fear of reprisal in certain specific circumstance. These rights fall on federal and state legislators speaking on the floor of a legislative body, to anyone testifying in court and in certain executive documents of the government. Journalists and filmmakers enjoy qualified privilege when publishing verbatim accounts of these privileged statements. A third defense revolves around the status of the person or persons about whom the publication is made and their status in society. People who thrust themselves into the public spotlight as public figures (politicians, actors, sports figures, etc.) are subject to fair comment and criticism in the form of published opinion. Likewise, public officials (those holding public office whether elected or appointed) are also subject to the same sort of criticism. Finally, there are a number of defenses where the actions of the publisher can thwart a libel claim. These can include when the publisher issues a retraction, when the publisher obtains consent from the would-be plaintiff to publish the material or when the reputation of the person is already ruined and cannot be further harmed by the reporting.
Regardless of the strength of the case, any publisher can be sued by anyone for anything published. Filmmakers should work from an attitude of not if they will be sued, but when they will be sued. Filmmakers should work with the utmost care that material to be published in a work is true. That provides the best protection against libel claims. Care should also be taken that the procedures to check facts are stringent and follow a standard set of procedures for every fact check. This rigor helps protect against claims that a publisher has a “careless disregard for the truth,” meaning work was not put into reasonable verification. Further still, statements made by a filmmaker that she was out to get someone with her work can lead to a claim of “actual malice,” defined in the landmark New York Times Co. v. Sullivan case in 1964 as publishing despite the fact one knows the material is false or makes no reasonable effort to determine if it is false, publishing to damage someone on purpose.
Aside from these procedural steps to protect themselves from libel claims, filmmakers should seek errors and omissions (E&O) insurance on their projects. The policy pays to defend the filmmakers in the case of a libel or defamation case (as well as claims of intellectual property theft, breach of contract and more) and pays the judgement should the filmmaker lose the case. Costs for the insurance vary based on the type and scope of the production.
Defamatory communication — Publication – Falsity – Reporters Committee for Freedom of the Press
Defamation Law: The Basics – FindLaw
Libel, slander, defamation – Media Law and Ethics
A Libel Suit Yields a Vigorous Defense of Free Speech – The New York Times
Defamation – Digital Media Law Project
Filmmaker Must-Read: Attorney Take on Errors & Omissions Insurance – IndieWire
Part One: First Amendment Rights and Guarantees
Part Two: Public Information, Sunshine and the Freedom of Information Act
Part Three: Respect, Privacy and Freedom from Harm
Part Four: Transparency, Accountability and Independence
Part Five: Copyright Laws, Fair Use, Licensing and Insurance
Part Six: Journalism Organizations and Resources
Part Seven: Journalism Organizations’ Codes of Ethics
Credits
Part Two: Public Information, Sunshine and the Freedom of Information Act
Public records, open meetings and freedom of information laws
Beginning in 1946 with the adoption of the federal Administrative Procedure Act (APA), the United States government began a process of requiring openness in government. In 1966, the Freedom of Information Act (FOIA) succeeded the APA to set up sweeping requirements that the federal government open its records to all citizens—with very few exceptions—to keep documents secret. The federal FOIA governs only records held by the federal government, but most states have enacted their own acts that open government records. Whether at the federal or state level, there is no central repository of records held by any one government. Instead, requests for records must be made to the specific agency that holds the needed records.
Just as the Freedom of Information Act and its state counterparts keep government records open, federal and state “sunshine” laws keep government meetings open. Passed in 1976, the Government in the Sunshine Act was federal legislation designed to keep meetings of government agencies open to public observation and occurring only after ample notice is given to the public. At the federal level, these agency meetings must be open except for certain specific exemptions, the most notable of which is for the sake of national security. State sunshine laws vary, but most follow the same pattern, requiring all governmental meetings to be open except in the case of personnel matters, litigation and real estate. It’s important to note that the right to record audio or video of a public meeting is usually considered to be implied by the sunshine laws, unless there is a specific written prohibition.
News – National Freedom of Information Coalition
Freedom of information laws – Reporters Committee for Freedom of the Press
Sunshine laws – Reporters Committee for Freedom of the Press
State sunshine laws – Ballotpedia
Sunshine Week – SunshineWeek.org
How to navigate FAC’s public records resources – First Amendment Coalition
Filing a Freedom of Information Act (FOIA) request
Requests for documents under the federal Freedom of Information Act (FOIA) or any of the state statutes for government open records are made in writing. Telephone calls, e-mails and in-person forms of contact may yield documents at the discretion of the agency or employee getting the request, but a written FOIA request triggers a chain of actions that will result in either the delivery of the desired documents or a written reason why the government does not see them as public.
There is no official form needed to request documents from the federal government, but a number of advocacy groups have written sample letters that allow anyone requesting records to just fill in the blanks. Here is a sample letter written by the National Freedom of Information Coalition and free for use by anyone petitioning a federal agency:
Agency Head [or Freedom of Information Act Officer]
Name of Agency
Address of Agency
City, State, Zip Code
Re: Freedom of Information Act Request
Dear ______________:
This is a request under the Freedom of Information Act.
I request that a copy of the following documents [or documents containing the following information] be provided to me: [identify the documents or information as specifically as possible].
In order to help to determine my status to assess fees, you should know that I am (insert a suitable description of the requester and the purpose of the request).
[Sample requester descriptions:
a representative of the news media affiliated with the ___________ newspaper (magazine, television station, etc.), and this request is made as part of news gathering and not for a commercial use.
affiliated with an educational or noncommercial scientific institution, and this request is made for a scholarly or scientific purpose and not for a commercial use.
an individual seeking information for personal use and not for a commercial use.
affiliated with a private corporation and am seeking information for use in the company’s business.]
[Optional] I am willing to pay fees for this request up to a maximum of $_____. If you estimate that the fees will exceed this limit, please inform me first.
[Optional] I request a waiver of all fees for this request. Disclosure of the requested information to me is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in my commercial interest. [Include a specific explanation.]
Thank you for your consideration of this request.
Sincerely,
Name
Address
City, State, Zip Code
Telephone number [Optional]
The sample letter shows a number of elements that should be included in the request. First, the letter must be addressed to the specific agency that holds the desired records. The letter can be addressed to an individual or simply to the Freedom of Information Act officer. Next, the letter should invoke the Freedom of Information Act so that the receiving party knows the agency must respond under law. The letter should then specifically request the documents being sought. The more specific the request, the more likely to get timely results. For example, instead of asking the EPA for all records regarding pollution in the Hudson River, the request should be for records pertaining to oil contamination in the Hudson River between Chelsea, NY and West Point, NY, occurring between January 1, 2015 and December 31, 2016. A specific request will allow the agency to find a finite number of records and return them much more quickly.
The letter should also make the case for a reduction or waiver in the fees charged. The law allows agencies to charge a reasonable fee for the cost of finding, duplicating, reviewing and delivering the records in the request. But a requesting party can ask for those fees to be waived if the use of the records will serve the public interest. So the letter can explain that the records will be used for documentary purposes to be released to a public audience for the public welfare. Even films being done for theatrical, screening or other commercial release can claim journalistic, non-commercial use or for public information into the understanding of the agency. Even if requesting a waiver, filmmakers should include a sentence to say how much they are willing to pay for records and listing an amount over which the agency must confirm charges. In closing, filmmakers should give a full list of contact information so that the documents can be delivered when ready.
Most state agencies will accept a general letter like the one above for request, or the requesting party can find a sample letter for each individual state that lists its respective open records statute.
How do I make a FOIA Request? – FOIA.gov
Sample FOIA Request Letters – National Freedom of Information Center
State Sample FOI Request Letters – National Freedom of Information Center
Welcome to iFOIA.org! – Reporters Committee for Freedom of the Press
How to File a FOIA Request: A Guide – Public Citizen
Effective FOIA Requesting for Everyone – George Washington University
Appealing an FOIA request
Once a FOIA request is filed, either at the federal or state level, three things can happen. The requestor will either get all the records requested, a denial of the records requested, or partial fulfillment of the request, including documents with sections redacted.
If the request is denied or the records come back redacted, the requestor has the right to an appeal. Before appealing, the filmmaker should check to be sure that the records are open under the law. At the federal level, there are specific exemptions to the law. They are:
Exemption 1: Information that is classified to protect national security.
Exemption 2: Information related solely to the internal personnel rules and practices of an agency.
Exemption 3: Information that is prohibited from disclosure by another federal law.
Exemption 4: Trade secrets or commercial or financial information that is confidential or privileged.
Exemption 5: Privileged communications within or between agencies, including those protected by: the Deliberative Process Privilege (provided the records were created less than 25 years before the date on which they were requested), the Attorney-Work Product Privilege or the Attorney-Client Privilege.
Exemption 6: Information that, if disclosed, would invade another individual’s personal privacy.
Exemption 7: Information compiled for law enforcement purposes that: could reasonably be expected to interfere with enforcement proceedings, would deprive a person of a right to a fair trial or an impartial adjudication, could reasonably be expected to constitute an unwarranted invasion of personal privacy, could reasonably be expected to disclose the identity of a confidential source, would disclose techniques and procedures for law enforcement investigations or prosecutions or could reasonably be expected to endanger the life or physical safety of any individual.
Exemption 8: Information that concerns the supervision of financial institutions.
Exemption 9: Geological information on wells.
If a filmmaker believes the requested documents fall outside these exemptions and have been improperly withheld, she may file an administrative appeal to the agency holding the records. The appeal should be a letter stating that the filmmaker is appealing the initial decision on the request. There is no fee to file this appeal. It will be heard by an independent review board and a new answer issued. If the board still denies the documents, the filmmaker can seek mediation on the matter from the Office of Government Information Services at the National Archives and Records Administration. This same process can be used if the request returns some or all the documents required, but those documents are redacted, hiding necessary information.
The states have fewer exemptions than the federal government, but may also deny or redact documents. The same appeal procedure can be used, funneling it to the proper state agency.
Some common problems that occur with FOIA requests can be addressed in specific ways. If told that no records exist that meet the request, try different dates, specifics, or even come back later to find records that are newly filed. If given a brief, broad denial, such as stating the request would interfere with law enforcement, narrow the request to keep the scope more limited. If requesting material that turns out to be exempt, separate known nonexempt requests and resubmit only those. Finally, ask for help, either from friendly workers inside the agency where the request is being made or from special interest groups expert at making similar requests.
Frequently asked questions – FOIA.gov
FOIA Exemptions – FOIA Advocates
Appealing your denial of police records – The Ann Arbor News
Requester’s Own FOIA Request Letter Redacted – Unredacted
Delayed, Denied, Dismissed: Failures on the FOIA Front – ProPublica
Open and closed public meetings
Open government is a two-pronged process. Open documents provide a record of what the government is doing and how it’s communicating. But open meetings are required to allow citizens to watch the government “live” while it works, stepping in to stop it when it runs awry. While the Freedom of Information Act and all the various state versions of the law provide for records to be open, sunshine laws at the federal and state level require open meetings that admit the public—and usually cameras and audio recorders.
While the federal government and all states have sunshine laws, there is a difference between the scope of the laws depending on the level of government. At the federal level, the act applies to government agencies only, defining agency as being “headed by a collegial body composed of two or more individual members, a majority of whom are appointed to such position by the President with the advice and consent of the Senate, and any subdivision thereof authorized to act on behalf of the agency.” This very specific definition leaves out the meeting of many individuals and groups in government that are not part of bodies like this.
At the local level, while laws vary from state to state, they are typically much more inclusive in terms of what meetings must be open. Missouri’s open meetings law, for instance, requires “public governmental bodies” conduct open meetings, and then goes on to define governmental bodies as:
any legislative, administrative or governmental entity created by the Constitution or statutes of this state, by order or ordinance of any political subdivision or district, judicial entities when operating in an administrative capacity, or by executive order
any body, agency, board, bureau, council, commission, committee, board of regents or board of curators or any other governing body of any institution of higher education, including a community college, which is supported in whole or in part from state funds
any advisory committee or commission appointed by the governor by executive order
any department or division of the state, of any political subdivision of the state, of any county or of any municipal government, school district or special purpose district including but not limited to sewer districts, water districts, and other subdistricts of any political subdivision
any other legislative or administrative governmental deliberative body under the direction of three or more elected or appointed members having rulemaking or quasi-judicial power
any committee appointed by or at the direction of any of the entities and which is authorized to report to any of the above-named entities, any advisory committee appointed by or at the direction of any of the named entities for the specific purpose of recommending, directly to the public governmental body’s governing board or its chief administrative officer, policy or policy revisions or expenditures of public funds including, but not limited to, entities created to advise bi-state taxing districts regarding the expenditure of public funds, or any policy advisory body, policy advisory committee or policy advisory group appointed by a president, chancellor or chief executive officer of
any college or university system or individual institution at the direction of the governing body of such institution which is supported in whole or in part with state funds for the specific purpose of recommending directly to the public governmental body’s governing board or the president, chancellor or chief executive officer policy, policy revisions or expenditures of public funds provided, however, the staff of the college or university president, chancellor or chief executive officer shall not constitute such a policy advisory committee. The custodian of the records of any public governmental body shall maintain a list of the policy advisory committees described in this subdivision
any quasi-public governmental body
any bi-state development agency
Clearly the state requires open meetings of nearly every type of government meeting possible within its borders.
In addition to the requirement to hold open meetings, all sunshine laws contain language that requires notice be given to the public in advance of meetings so that citizens may attend. Typically, the amount of prior notice needed is written into the statutes. Twenty-four hours is often the minimum notice for a public meeting.
Also typical in most sunshine laws is a requirement that public meetings be open to video and audio recording. The laws state that cameras and microphones may not be barred from public meetings except in specific circumstance, which vary by state.
Most sunshine laws allow any of these normally open meetings to be closed for specific circumstances. Those reasons to close a meeting include discussion of:
Litigation or other legal action
Purchase, sale or leasing of real estate
Hiring, firing or discipline of personnel
State national guard or militia business
Discussions of the physical or mental health of individuals
School or other academic records
Individual recipients of state aid
Proprietary discussions
Records closed of confidential by law
Confidential auditor’s records
Personal data records like credit card numbers
Should a filmmaker be barred from what she believes should be an open meeting, there are some steps to take to try to regain access. Generally, the first remedy is to raise an objection at the meeting at the time it is being closed. The filmmaker should be sure to know the federal statutes or the law of the state where the meeting is taking place and then assert the reasoning why the meeting should be open. In some cases, the group running the meeting will agree and open it to the public.
If that approach is not successful, the filmmaker will probably not get into that specific meeting. The remedy at the state level requires the filmmaker file a formal complaint with the body holding the meeting. The state attorney general is a contact point to check the law and get information on the complaint. In some states, the attorney general’s office will assist or even file the complaint itself. At the federal level, the complaint must go directly to the agency that closed the meeting. The U.S. Attorney General will not get involved in those complaints.
In cases where the complaint is denied by the offending body, then it is necessary to file suit in the county where the meeting took place or in federal court for federal meetings. This can start without a lawyer involved, though if the case goes to court, it may be necessary to have an attorney at that time.
Sunshine laws – Reporters Committee for Freedom of the Press
The Government in the Sunshine Act – GSA.gov
Open Meetings – Reporters Committee for Freedom of the Press
Open records & meetings (FOIA) – Reporters Committee for Freedom of the Press
Reporters often banned from public meetings even though it’s unconstitutional – Consumer Affairs
Sunshine Law: Missouri’s Open Meetings and Records Law – University of Missouri Extension
Closed meetings and closed records authorized when, exceptions – Revisor of Statutes, State of Missouri
Open Meetings: Questions and Answers – North Carolina Department of Justice
Who may attend? – Reporters Committee for Freedom of the Pres
Recording Public Meetings and Court Hearings – Digital Media Law Project
Courtroom access and cameras in the courtroom
The history of cameras and other recording devices in the courtroom is one of the most complicated aspects of First Amendment rights. As early 20th Century innovations began to allow for the recording of judicial processes, the courts struggled with how to deal with the new technology. Radio broadcasters place four microphones around the courtroom to broadcast the so-called Scopes Monkey Trial live to audiences around the country in 1925. Ten years later, still and movie cameras were allowed in the Lindbergh kidnapping trial of Bruno Hauptmann—restricted just to when court was not in session, though photographers broke those rules and recorded during the trial.
The relatively loose rules applying to media in the courtrooms led to some backlash from bar associations and eventually Congress. Following the Hauptmann trial, the American Bar Association (ABA) adopted a rule banning cameras and microphones from courtrooms to preserve the “essential dignity” of the trial process. Then, in 1946, Congress banned photography and broadcast coverage in any federal courts.
The state courts where slower to respond and in many states, photography, filming and audio recording went on, ignoring the ABA rule. As television came on the scene, state court trials were sometimes televised. Some states, like Colorado, even made rules expressly allowing television coverage of trials.
But all that changed with the murder trial in Ohio of Cleveland doctor Sam Sheppard, accused of the murder of his pregnant wife. Reporters and cameramen filled the courtroom, moving about where they liked and interfering with the trial. Sheppard was convicted, but in 1966, the U.S. Supreme Court threw out that conviction, partially due to the circus-like media coverage of the trial and the placement of reporters and photographers in the courtroom. With the overturning of that case, as well as the case of Billy Sol Estes, which received similar press attention, state courts sharply cut back and basically banned cameras and microphones in courtroom, once again following the ABA rules.
After a fifteen-year lull, some states began to experiment with bringing cameras and microphones back into the courts. Florida was the first to resume routine coverage and a U.S. Supreme Court ruling in 1981 opened the door for other states to follow suit. Now, all states allow cameras in some level of their courts. Most allow coverage of trial courts, though some only allow cameras and microphones in appellate courts. A guide to all states is included in the links below. Federal courts, with the exception of a few limited experiments, still prohibit outside cameras and microphones in their courtrooms. In some cases, as with the U.S. Supreme Court, audio recordings done by the court are released after the fact and available to filmmakers. Journalists and others continue to call for cameras to be allowed in the Supreme Court, but must justices seem to be hesitant to take that step.
Though the states allow cameras, the procedure to get one into a courtroom is often complex. In very few cases can a filmmaker just show up with a camera on the day of the trial and gain access. In nearly every jurisdiction, there are rules to request cameras and microphones that must be followed. Some courts require all media pool their requests and allow just one video camera and one still camera into the proceedings. Many give the judge and sometimes even the defendant the right to veto cameras and microphones. And most have restrictions on what can be recorded in the courtroom (e.g. many jurisdictions don’t allow video or stills to be taken of the jury members). Once again, a link below supplies detailed rules state by state.
Aside from access to the courtroom, of particular interest to filmmakers is access to the records of the trial, most notably video depositions. All documents filed in court become part of the public record and are available to filmmakers, including video or audio depositions. Material not actually filed in court but collected by either party does not necessarily become part of the public record and thus is not available to the public.
There are some court records that, as a rule, do not become public and are not available to filmmakers. In most states, they are:
Juvenile court matters
Mental health commitment hearings
Personal private records used in trials, like social security numbers and account numbers
Domestic violence protection orders
Paternity and adoption proceedings
Psychological evaluations
Some medical records
Cameras in the Court Resource Guide – National Center for State Courts
Media Relations State Links – National Center for State Courts
RTDNA Cameras in the Courts Guide – Radio Television Digital News Association
Can You Record in a Court Room? – Legal Beagle
History of Cameras in Courts – United States Courts
Court Records – United States Courts
Cameras in Courts – United States Courts
Cameras in courtrooms – Reporters Committee for Freedom of the Press
Television Cameras in Court – Thompson Coburn
Argument Audio – U.S. Supreme Court
Available Court Videos – United States Courts
Allow video cameras in the Supreme Court – The Hill
Why there should be cameras in the Supreme Court – The Los Angeles Times
Cameras in the Courtroom – Congressional Quarterly Press
Was That a Yes or a No? – Latham and Watkins
Court Records and Proceedings: What is Public and Why? – Connor Reporting
Part One: First Amendment Rights and Guarantees
Part Two: Public Information, Sunshine and the Freedom of Information Act
Part Three: Respect, Privacy and Freedom from Harm
Part Four: Transparency, Accountability and Independence
Part Five: Copyright Laws, Fair Use, Licensing and Insurance
Part Six: Journalism Organizations and Resources
Part Seven: Journalism Organizations’ Codes of Ethics
Credits
Part Three: Respect, Privacy and Freedom from Harm
Legal understanding of privacy
The U.S. Constitution does not expressly delineate a right to privacy. What constitutional scholars can find that might indicate an intention to grant citizens privacy stems from elements of a number of amendments in the Bill of Rights. The First Amendment grants the right to privacy in your beliefs, the Third Amendment grants you the right to privacy on your home—at least from housing soldiers there, the Fourth Amendment protects the privacy of your possessions and your body from illegal searches and seizures, while the Fifth Amendment grants you the right to privacy of your personal information so that it can’t be compelled from you in court.
Aside from these specific rights, the courts over the years have ruled that the 14th Amendment gives a number of important rights to privacy. Section one of the amendment states: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” This amendment has been the basis for some of the biggest civil rights decisions ever, from Brown v. Board of Education, which ended Jim Crow, to Roe v. Wade, which legalized abortion, to Obergefell v. Hodges, which established marriage equality.
This equal protection clause guarantees have been the basis to stop government intrusion into the private lives of individuals. But rights compete when it comes to the actions of private individuals. The rights guaranteed by the First Amendment to allow a free press come in conflict with individuals’ apparent right to privacy. Courts and scholars have focused on four areas of conflict: court proceedings, false light, intrusion and private facts. Previous sections of this guide have focused on the first two of these areas, so this section focuses primarily on the latter two—intrusion and private facts.
From a filmmaking point of view, intrusion can take place when a filmmaker invades a person’s expected privacy, whether or not the information gathered is ever published or shown publicly. All the same, guarantees for a journalist (or filmmakers) First Amendment rights are strong. Courts have tried to balance these rights with mixed results.
At the state level, the conflict becomes even more complicated. A state-by-state guide is linked below.
The Right of Privacy – University of Missouri-Kansas City
Right to Privacy: Constitutional Rights & Privacy Laws – Live Science
Is There a ‘Right to Privacy’ Amendment? – FindLaw
Constitutional right to privacy a figment of imagination – Chron.com
Here’s Why the 14th Amendment Is a Big Deal – U.S. News & World Report
A primer on invasion of privacy – Reporters Committee for Freedom of the Press
State-by-state guide – Reporters Committee for Freedom of the Press
The Victim’s Right to Privacy Versus the Public’s Right to Know – Justice Solutions
Guidelines for Respecting Privacy – Radio Television Digital News Association
Privacy for journalists – Media Helping Media
Journalism, Sensors and Privacy in an Age of Surveillance – Medium
What Constitutes a Violation – US Legal
Hidden cameras and microphones
It is one thing when a filmmaker’s camera and microphone are free for all the see and there’s no secret attempt to get footage. When a filmmaker decides to hide the camera or microphone, certain laws come into play to minimize the risk of intrusion. The more specific laws have to do with recording audio when some of the parties being recorded are unaware of the recording. One of the first thing for a filmmaker to determine is the state law regarding party consent of recording. One-party recording states allow secret recordings where only one party being recorded needs to be aware of the recording. That means since the filmmaker, of course, will be aware of the recording, it is legal to record another party or parties without their knowledge. Federal law allows one-party recording in most cases. Two-party (or all-party) recording states require everyone being recorded needs to be aware the recording is being made. That essential eliminates the possibility of secret recording in those states. A list of state laws is in the links below.
The law is not specific in terms of the public release of secretly-recorded audio. The FCC specifically requires that recorded (or live) telephone calls can be broadcast only if the parties being recorded consent to being broadcast. There are no specific laws related to the public exhibition of secret recordings, meaning the recorded party can attempt to seek civil recourse if the recordings are made public.
Hidden camera recordings have much less specific laws attached, other than any audio recorded at the time of the film or video recording falls under the one-party/two-party limits listed above. New technology allowing nearly anyone to record secret video using “nanny cams” or other tiny cameras has drawn the attention of lawmakers to this topic. Thirteen states now prohibit hidden cameras used to record in private places. The states generally define private places as those where a reasonable person can expect to be save from unauthorized surveillance. A handful of other states prohibit hidden cameras in specific places, like locker rooms or restrooms where people have the presumption that they can remove some or all of their clothing in privacy.
Recording — State hidden camera statutes – Reporters Committee for Freedom of the Press
Laws on Recording Conversations in All 50 States – Matthiesen, Wickert & Lehrer
State Law: Recording – Digital Media Law Project
Consent and its limits – Reporters Committee for Freedom of the Press
Broadcast of Telephone Conversations – Federal Communications Commission
Recording Phone Conversations: A Checklist – Poynter Institute
Field Guide to Secret Audio and Video Recordings – New Media Rights
Know Your Rights: Hidden recordings – Radio Television Digital News Association
Entering private property
The law does not give filmmakers or journalists any special rights to enter private property. The laws regarding trespassing apply to all. As with many of the elements of this guide, the laws vary by state. But in general, the rules regarding trespassing follow the same pattern in most states.
A filmmaker may always enter private property when she has the consent of the owner or an authorized party. There are two types of consent, express and implied. Express consent is present when the owner or authorized party gives written or verbal permission to enter the property. It is the strongest form of consent legally. Implied consent exists when permission appears to be present through set custom, actions of the landowner or if the landowner is not present but an emergency exists for which someone must enter the property.
Trespassing occurs when someone intentionally enters a property for which the trespasser has knowledge that no consent exists. In general, someone cannot accidentally trespass. It must be a conscious act. Landowners can claim that knowledge exists if the land is posted “No Trespassing” or if the land is fenced. Even after giving permission, a landowner can revoke it by telling a visitor she must leave. At that point, the visitor must leave the property or would be guilt of trespassing. Private property were people are allowed to come and go without asking permission are considered to give implied consent. Shopping malls, the sidewalk going to the front door of a private home or the interior of a place of business are examples of this sort of property. For any of these properties, if the owner or an authorized person tells a visitor to leave, that person must leave or be guilty of trespassing.
Trespassing is usually considered a criminal act, enforceable by local law enforcement and courts. There does exist the possibility of civil trespass in which a landowner sues for damages that occurred during the trespass.
For all of these issues of trespass, the fact that a filmmaker will use footage shot there has no bearing on whether trespassing has been committed. If shooting on private property under the impression permission exists to be there, if a filmmaker suddenly finds that permission revoked, any footage obtained before the revocation of permission is permissible to be used. Once permission is revoked, the filmmaker should not continue to shoot.
One special case that filmmakers and journalists can face is if they are following subject who then trespass onto private property. The filmmaker is then faced with the decision whether to trespass to follow the subjects. The law does not give filmmakers or journalists a right to trespass just to follow a story. If the filmmaker decides to trespass, she can try to make the case after the fact that there was no harm done by her trespassing and that the filmmaking purpose of the trespass outweighed the crime.
State by State Guide to No Trespassing Laws & Signage – Signs.com
Criminal Trespassing Law – Nolo.com
Entering the private property of another – Reporters Committee for Freedom of the Press
Private Property – Reporters Committee for Freedom of the Press
A Reporter’s Field Guide – Reporters Committee for Freedom of the Press
Trespassing to get the story – Reporters Committee for Freedom of the Press
Trespass – Digital Media Law Project
Journalists and Trespass – Pennsylvania News Media Association
Accompanying police or other officials onto private property
A special case for access to private property may exist when a filmmaker or journalist is working with police, fire or other government officials. In cases where those officials enter private property and the filmmaker is accompanying them, the case may exist to enter the property without seeking permission. If the emergency team members give consent for the filmmaker to accompany them, it is unlikely the filmmaker could face criminal trespass charges. But the emergency team permission does not necessarily protect the filmmaker from civil trespass action by the property owner later.
Can I do that? A legal primer for journalists – Columbia Journalism Review
Access to Private Property – Digital Media Law Project
Public disclosure of private facts
The First Amendment and prior case law protects filmmakers and journalists from most libel claims if the materials published meets the tests listed in the earlier section on libel. But subjects who feel wronged by the release of their private facts can bring suit for harm in that arena.
Suits of this time rely on four elements: the public disclosure of information, that the facts are indeed private, that what is published would be considered offense by a reasonable person and that the facts disclosed are not newsworthy.
By public disclosure, the law recognizes that the fact must have been distributed in some way to the public at large. Filmmakers screening a film in public, broadcasting it on television, releasing it on DVD or streaming it on the internet would meet the public disclosure requirement. Material gathered for a film but not appearing in a publicly-released cut would not meet this standard.
In general, private facts are defined as specific details of a person’s private life that are not generally known to the public. This can range from personal sexual habits to medical conditions to bank account numbers. Information like this is not considered private (for the sake of a lawsuit) if it has already been made public elsewhere or if it is widely known.
In terms of offensiveness, the courts have used the “reasonable person” test to determine whether the released information would be offensive to people in general and not just to the person about whom the information was released. This test clearly falls on the shoulders of the judge or jury in a case and is difficult to anticipate in some cases.
Finally, the newsworthiness standard is often an aid to filmmakers and journalists. If the information released—no matter how private—has a legitimate public interest, then it provides a strong defense should someone bring a case of public disclosure against a filmmaker. In general, this defense is strongest if the information bears directly on an important issue and is timely to the publication of the material.
Additional defenses come from two areas: consent and public information. If a person consents to the release of the information, that person cannot bring a public disclosure case later. This is a strong argument for releases obtained before or during the production of a film. Additionally, if the information released comes from a public record, the courts have ruled a constitutional right to publish without fear of a public disclosure suit.
When Can an Individual Sue for Public Disclosure of Private Facts? – Newseum Institute
Publication of Private Facts – Digital Media Law Project
Invasion of Privacy: Public Disclosure of Private Facts – FindLaw
Publication of Private Facts: Explanation for Non-Lawyers – Kelly/Warner
Invasion of Privacy – Public Disclosure of Private Facts – WithoutMyConsent.org
Privacy – Electronic Frontier Foundation
Appropriation
State laws regulate the definition of appropriation, but it is generally held to be the use of someone’s name or likeness without permission for the purposes of trade. Most commonly invoked in cases involving advertising, appropriation can sometimes turn on filmmakers and journalists. The courts have given protections to journalists and others for using the name or likeness in cases deemed to be newsworthy. Filmmakers can use this defense by claiming their films are addressing newsworthy issues in society. Creative works are also protected in most states, so filmmakers can assert that claim as well.
Consent is also a defense against appropriation claims. Using a release form when filming will provide a filmmaker with a consent defense in the case of an appropriation claim.
Appropriation in General – Oklahoma State University
Invasion of Privacy: Appropriation – FindLaw
Appropriation of Plaintiff’s Name or Likeness – LawShelf.com
Invasion of Privacy: Appropriation and Intrusion – Mass Media Law, 13th edition
Self-Defense for Filmmakers – Mark Litwak
Using the Name or Likeness of Another – Digital Media Law Project
HIPAA
The Health Insurance Portability and Accountability Act was passed by Congress and signed into law in 1996. The law’s purpose was mainly to safeguard consumers who were changing jobs or part of large group plans to guarantee more affordable health insurance. But one section of the law dealing with the privacy of a person’s health information had far-reaching impact on the news media. The Privacy Rule of the law is often misunderstood by the public and even medical professionals. Some wrongly believe the rule prohibits filmmakers, journalists and others from publishing medical information. In fact, the law expressly regulates what “covered entities” can release in terms of private health information (PHI). The covered entities are health plans, health care clearinghouses, health care providers and the business associates of any of the aforementioned entities. The law does not expressly prohibit the possession or distribution of PHI by journalists, filmmakers or others not specifically listed above.
The lack of regulation on filmmakers does not mean that health care providers will understand the law. Journalists often find themselves accused of violating HIPAA regulations when they possess or publish PMI they have obtained. In fact, since HIPAA does not regulate journalists (or filmmakers), no HIPAA violation has taken place. An individual may still sue for a public disclosure of private fact claim, but that would not be a HIPAA violation.
HIPAA Guide for the Newsroom – Pennsylvania News Media Association
Medical Privacy – Reporters Committee for Freedom of the Press
What records are available under HIPAA? – Reporters Committee for Freedom of the Press
To Whom Does the Privacy Rule Apply and Whom Will It Affect? – National Institutes of Health
Journalists get guidance on navigating HIPAA rules – Association of Health Care Journalists
Shooting from the HIPAA: Sources and privacy – Radio Television Digital News Association
HIPAA and Disclosure to Media – Health Law Blog
Balancing the power of privacy – Society of Professional Journalists
Ethical considerations of harm
Physicians learn a battery of ethics in medical school and the training that follows. Among the ethics they pledge to back is the notion to “First, do no harm” when treating their patients. Critics argue journalists, filmmakers and others who tell the true stories of our society to swear to the same pledge before they begin their work. Many of the codes of ethics of professional journalism organizations share this sentiment (the full codes are found at the bottom of this guide). The Society of Professional Journalists (SPJ) has an entire section in its code under the heading “Minimize Harm.” It states:
Ethical journalism treats sources, subjects, colleagues and members of the public as human beings deserving of respect.
Journalists should:
– Balance the public’s need for information against potential harm or discomfort. Pursuit of the news is not a license for arrogance or undue intrusiveness.
– Show compassion for those who may be affected by news coverage. Use heightened sensitivity when dealing with juveniles, victims of sex crimes, and sources or subjects who are inexperienced or unable to give consent. Consider cultural differences in approach and treatment.
– Recognize that legal access to information differs from an ethical justification to publish or broadcast.
– Realize that private people have a greater right to control information about themselves than public figures and others who seek power, influence or attention. Weigh the consequences of publishing or broadcasting personal information.
– Avoid pandering to lurid curiosity, even if others do.
– Balance a suspect’s right to a fair trial with the public’s right to know. Consider the implications of identifying criminal suspects before they face legal charges.
– Consider the long-term implications of the extended reach and permanence of publication. Provide updated and more complete information as appropriate.
These principles have meaning for filmmakers as they approach their characters and subjects to tell those stories. Some journalists have argued this profession should have its own oath similar to the Hippocratic Oath to which physicians swear. Broadcast producer Melvin Dean Baker suggests it be crafted something like this:
“I __________ In obedience to the dictates of my own conscience vow to serve the public with news and information as free of bias and distortion as is within my skill to execute.
I will strive to bring balance, depth and perspective to the work I offer, so it may enlighten and inform.
I will at all times remain mindful of the distinction between opinion and journalism and make it clear which voice I am speaking in.
I will honor the public trust by refusing to use my journalist voice to advance the propaganda of governments, organizations or advertisers.
I will protect the secrecy of my confidential sources to ensure the public’s right to know is not thwarted by conspiracies of silence.
I vow not to libelously harm another person’s character, reputation or legacy.
I affirm my commitment to this noble public trust in concord with all journalists of goodwill and integrity, for the betterment of the communities that I serve.”
While efforts like this might be more of a rallying point to get journalists to do the right thing, rather than a true effort to establish an oath, journalists have been clear about one requirement they do NOT want—a licensing procedure for journalists. Some have called for journalists to go through an official licensing process just as doctors and lawyers must do. Supporters argue that incompetent journalists can ruin lives just as easily as a quack doctor or a slipshod lawyer. But journalist push back against this idea on First Amendment ground. They see government licensing of journalists as a way to control journalists and what they publish. Legal scholars say any state or federal attempt to require journalists to be licenses would likely be tossed out on constitutional grounds by the courts.
Guiding Principles for the Journalist – Poynter Institute
SPJ Code of Ethics – Society of Professional Journalists
Journalists should ‘do no harm’ – The Arkansas State University Herald
Journalists: do no harm! – Columbia Journalism Review
How journalists can minimize harm covering shootings – Radio Television Digital News Association
The 5 Principles of Ethical Journalism – Ethical Journalism Network
When Journalism is Causing Unintentional Harm – Baekdal
A Hippocratic Oath for Journalists – George Monbiot
Fighting Fake News with an Oath – Medium
Covering sexual assault
The explosion of stories about the sexual harassment and assault of women in the movie industry, journalism, business, academia and other places in 2017 called into question the way the media handle such stories. On the one hand, victims of these acts were often afraid to come forward and put themselves into the public spotlight. On the other hand, journalists often wondered what sort of verification could be done to be sure the stories being told were true.
Perhaps the most important work a filmmaker can do is to expose these hidden abuses to an audience. But the path to completing this work raises many questions. First among those is whether to identify the victims of sexual harassment, abuse and violence. In some cases, those victims voluntarily identify themselves, allowing filmmakers to use their identities freely in their work. In other cases, the victims wish to remain anonymous, seeking to tell their stories but salvage their privacy in the act.
While the First Amendment gives filmmakers and journalists a nearly absolute right to publish the names of victims of sexual assault, it has been a professional norm for more than a generation to withhold those names from publication—even if they are known to the filmmaker or journalist involved. Though some call for a change in that practice for the sake of the victims and not separating them from other victims of crime, most agree this practice should continue. The best approach is to work with the victim and determine that person’s wishes. Once known, the filmmaker should do his best to stick with the agreement.
Other concerns of reporting on sexual assault surround the language used by filmmakers and journalists. Often victim-blaming, an intentional or unintentional shifting of the blame for the crime onto the person who was assaulted, takes place due to the language used or the details included. For instance, writing about a rape need not include what the victim was wearing or how her makeup was done. Including those facts may send a message that the victim brought in on herself or “was asking for it.” Victims in what society has deemed to be marginalized communities (sex workers, trans people, immigrants, etc.) often end up being the targets of stereotypes once they are victims of sexual assault.
Perhaps the biggest sin committed by filmmakers and journalists focused on sexual harassment and assault happens when their reporting for the reasons behind the attack focus on the victim rather than the perpetrator. Victims are often looking to blame themselves for what happened to them, and media coverage that supports culpability in the victims only supports those feelings.
How to Write About Rape: Rules for Journalists – The Nation
Covering Sexual Assault – Nieman Reports
Anonymity for Rape Victims…Should the Rules Change? – Indiana University
Rethinking rape coverage – Society of Professional Journalists
The right way to write about rape – Columbia Journalism Review
Advice for journalists covering sexual assault stories – IJNet
Working with juveniles and minors
Though the law often requires the courts, police and others around the justice system to withhold the names of minors accused of crimes, the courts have never put an restriction on the publishing of those names by journalists or others once they have obtained them. Filmmakers have the right to use the names and likenesses of minors in their work just as they would with adults.
While the law allows it, the ethics of choosing to depict and identify minors in published work are more complicated. The discussion here revolves around when to treat minors like adults, when to obtain parental permission and whether the publication of information about minors will cause harm to an innocent person.
In terms of treating minors like adults, that question often comes up in the investigation of crimes committed by minors. A judge must decide in these cases whether to charge a minor like an adult if the crime is of sufficiently adult nature. Filmmakers and journalists have their own decision to make whether to report the names of minors accused of such crimes. Many journalists build their own decision based on the crime committed and whether it seems the minor was acting in the manner of an adult. Those who are alleged to have done so often have their names and likenesses used. Those that seem to be involved in lesser crimes will often be spared having their name or likeness used in public.
Regarding parental permission for interviews of involving a minor in a reporting project, there is no law that requires a parent give permission for a child to be interview, regardless of age. This hold true regardless of the subject matter of the intended interview. Most journalists develop a personal standard by which to determine at what age to do an interview without parental consent. Typical among these standards is to get parental consent for middle school-aged or younger children, while those in junior high or high school can be approached without asking parents. These personal guidelines are only that—personal—and do not guarantee that an agree parent will not contact a filmmaker after the fact to complain he or she was not contacted to approve the interview. The only way to avoid such confrontations is to get permission from a parent or guardian any time one does an interview with a minor.
The final consideration here goes back to the concept of not doing harm to the subjects of our films. A filmmaker must weigh the value of having a minor in a film versus the possible harm that could be done to the minor by getting involved in the project. No law governs this decision, so the filmmaker must turn to trusted advisors and the minor’s parents to work this out.
Guidelines for Identifying Juveniles – Radio Television Digital News Association
Guidelines for Interviewing Juveniles – Radio Television Digital News Association
Kid Gloves: Interviewing and Reporting on Minors – FindLaw
Should Journalists Name Juveniles in Crime Stories? – iMediaEthics.org
Identifying Juveniles –Poynter Institute
Guidelines for Interviewing Juveniles – Poynter Institute
Children: coverage, images and interviews – Online News Association
Is it fair to reveal the names of minors charged as adults? – Columbia Journalism Review
From the Hotline – Reporters Committee for Freedom of the Press
Interviewing Children: Guidelines for Journalists – Dart Center for Journalism & Trauma
Respect for the audience
National Public Radio (NPR) has, as part of its ethics handbook, a full section on respect. It states: “Everyone affected by our journalism deserves to be treated with decency and compassion. We are civil in our actions and words, avoiding arrogance and hubris. We listen to others. When we ask tough questions, we do so to seek answers — not confrontations. We are sensitive to differences in attitudes and culture. We minimize undue harm and take special care with those who are vulnerable or suffering. And with all subjects of our coverage, we are mindful of their privacy as we fulfill our journalistic obligations.”
NPR’s approach reflects a new trend in journalism that recognizes that the old one-way channel of communication from journalist to audience is changing. While transparency of process and a real desire to listen to audiences has grown commonplace across many journalism organizations, it is still difficult to apply this approach to filmmaking in a wholesale manner. Films are still one-way communication devices. But that call for civility of action and word and sensitivity to differences in attitude and culture can develop into a mission for filmmakers as well.
Respect – National Public Radio
Part One: First Amendment Rights and Guarantees
Part Two: Public Information, Sunshine and the Freedom of Information Act
Part Three: Respect, Privacy and Freedom from Harm
Part Four: Transparency, Accountability and Independence
Part Five: Copyright Laws, Fair Use, Licensing and Insurance
Part Six: Journalism Organizations and Resources
Part Seven: Journalism Organizations’ Codes of Ethics
Credits
Part Four: Transparency, Accountability and Independence
Journalistic transparency and accountability overview
Transparency is a relatively new concept for journalists. As modern journalism developed in the 19th and 20th centuries, the one-way nature of publishers and broadcasters reporting the news and sending it to their audiences had little need to lay bare the processes by which they collected and produced the news. The audience had few choices, so it had to accept the American system of journalism as it was. As the 21st Century dawned, the combination of an explosion of news choices and the development of social media as a two-way tool to reach news producers, journalistic institutions found they needed to change.
Accountability found its footing a bit earlier, based on ethical norms shared by journalists that basically call for a constant need to be able to defend the practices used to produce news stories. Early on, that accountability was often internal-facing, meaning a journalist needed to feel confident she could face her newsroom colleagues and defend her tactics on any story. As transparency grew into a newsroom norm, the two merged into a single internal/external approach to open journalistic practice. It’s important to note that general accountability in journalism should not be confused with what is specifically called “accountability journalism,” a subset of investigative journalism that focuses an aggressive beat reporting approach for finding corruption in all aspects of society.
Interestingly, transparency and accountability have begun to supplant the old journalistic standard of objectivity in reporting. As documentary filmmakers have long known, true objectivity is unachievable in any human endeavor. Journalists clung to that standard through the first century of modern journalism, suggesting their stories could be objective by being fair, balanced and without bias. As partisan differences helped fragment the media at the beginning of this century, objectivity became less important for that portion of the audience seeking news reporting that supported its political views. Transparency, on the other hand, allowed news consumers to know how the journalism was being made and to make their own decisions about whether a particular news source was reporting news in the “right” way. All the major journalism organizations call for transparency and accountability in their codes of ethics. For example, the Radio Television Digital News Association (RTDNA) has a section entitled “Independence and transparency” in which it lists the following standards for journalists to follow:
Editorial independence may be a more ambitious goal today than ever before. Media companies, even if not-for-profit, have commercial, competitive and other interests – both internal and external — from which the journalists they employ cannot be entirely shielded. Still, independence from influences that conflict with public interest remains an essential ideal of journalism. Transparency provides the public with the means to assess credibility and to determine who deserves trust.
Acknowledging sponsor-provided content, commercial concerns or political relationships is essential, but transparency alone is not adequate. It does not entitle journalists to lower their standards of fairness or truth.
Disclosure, while critical, does not justify the exclusion of perspectives and information that are important to the audience’s understanding of issues.
Journalism’s proud tradition of holding the powerful accountable provides no exception for powerful journalists or the powerful organizations that employ them. To profit from reporting on the activities of others while operating in secrecy is hypocrisy.
Effectively explaining editorial decisions and processes does not mean making excuses. Transparency requires reflection, reconsideration and honest openness to the possibility that an action, however well intended, was wrong.
Ethical journalism requires owning errors, correcting them promptly and giving corrections as much prominence as the error itself had.
Commercial endorsements are incompatible with journalism because they compromise credibility. In journalism, content is gathered, selected and produced in the best interests of viewers, listeners and readers – not in the interests of somebody who paid to have a product or position promoted and associated with a familiar face, voice or name.
Similarly, political activity and active advocacy can undercut the real or perceived independence of those who practice journalism. Journalists do not give up the rights of citizenship, but their public exercise of those rights can call into question their impartiality.
The acceptance of gifts or special treatment of any kind not available to the general public creates conflicts of interest and erodes independence. This does not include the access to events or areas traditionally granted to working journalists in order to facilitate their coverage. It does include “professional courtesy” admission, discounts and “freebies” provided to journalists by those who might someday be the subject of coverage. Such goods and services are often offered as enticements to report favorably on the giver or rewards for doing so; even where that is not the intent, it is the reasonable perception of a justifiably suspicious public.
Commercial and political activities, as well as the acceptance of gifts or special treatment, cause harm even when the journalists involved are “off duty” or “on their own time.”
Attribution is essential. It adds important information that helps the audience evaluate content and it acknowledges those who contribute to coverage. Using someone else’s work without attribution or permission is plagiarism.
Similarly, the Society of Professional Journalists (SPJ) code of ethics, in its “Be Accountable and Transparent” section, states:
Ethical journalism means taking responsibility for one’s work and explaining one’s decisions to the public. Journalists should:
Explain ethical choices and processes to audiences. Encourage a civil dialogue with the public about journalistic practices, coverage and news content.
Respond quickly to questions about accuracy, clarity and fairness.
Acknowledge mistakes and correct them promptly and prominently. Explain corrections and clarifications carefully and clearly.
Expose unethical conduct in journalism, including within their organizations.
Abide by the same high standards they expect of others.
Documentary filmmakers, who often reject journalists’ desire for straight-down-the-middle balance, may still find some guidance in this striving for transparency and accountability. This approach allows filmmakers to face characters in their films as well as members of the audience and answer the questions that might come from those encounters.
Transparency – National Public Radio
Why Journalists Should Use Transparency as a Tool to Deepen Engagement – Mediashift
The best ways for publishers to build credibility through transparency – American Press Institute
Transparency Finally Takes Off – Nieman Lab
Accountability – Society of Professional Journalists
Accountability – National Public Radio
Holding Media Accountable – Center for Journalism Ethics
Is transparency the new objectivity in journalism? – Journalism.co.uk
Setting Standards for Journalism and Democracy – Ethical Journalism Initiative
Anonymous or confidential sources
One of the most difficult decisions a journalist must ever make is whether to include anonymous or confidential sources in a report. Aside from the potential legal risk of withholding the identity of a source—particularly in areas without the protection of a shield law—the use of this sort of sourcing runs the risk of sending the wrong message to audience members. Audience members have grown increasingly skeptical of stories in which sources are not named. Part of this skepticism is tied to the rise in transparency in news reporting. Transparency and anonymous sources are clearly at odds with each other and modern audiences see that.
Still, most journalists are quick to affirm that it would very hard to do important political and investigative stories without anonymous sources. Perhaps the greatest feat of investigative reporting in modern journalism—coverage of the Watergate scandal—would not have been possible without Deep Throat, Woodward and Bernstein’s confidential source. The motivation on the source’s part to hide his or her identity come from those sources holding positions of power, knowledge or influence they would jeopardize were they to allow their names to be used in association with journalistic reports. In that way, news consumers benefit from the very sources of which they are the most skeptical.
Visual reporting, like television news or documentaries, suffers the most from the use of anonymous sources. While a newspaper report can simply cite “unnamed sources” in its copy, visual reporting efforts must hide the face and disguise the voice of its anonymous sources.
Most journalism organizations have a set of internal guidelines or questions to answer to justify the use of an anonymous source in a story. These questions often focus on what other steps have been taken to get the information, the anonymous source’s motivation and the importance of the story. The Radio Television Digital News Association (RTDNA) coverage guidelines for anonymous sources describes a process with which to reach this decision. First the guidelines call for the story to fulfill four criteria necessary to use an anonymous source. Those criteria are:
A story that uses confidential sources should be of overwhelming public concern.
Before offering a source anonymity, you and your news managers must be convinced there is no other way to get the essential information on the record.
You and your news managers must be convinced the unnamed source has verifiable knowledge of the story. Even if the source cannot be named, the information must be proven true.
You and your news managers must be willing to publicly describe the source in as detailed a manner as anonymity permits (this may include the source’s political party, agency or workplace affiliation, etc.), reveal to the public why the source cannot be named and what, if any, promises the news organization made in order to get the information.
If a story meets these four criteria, RTDNA’s guidelines ask the journalists involved to consider a substantial battery of questions:
What does the use of a confidential source mean to the factual accuracy and contextual authenticity of your story?
Does this source deserve the protection of his/her identity? Will revealing the source threaten the safety of the source, their family or their livelihood?
What legal obligations do you incur by promising not to reveal this source’s name? If you are sued, are you willing to go to jail to protect this source? If you are sued, will the source come forward and be named? Is the reluctance justifiable?
How would viewers/listeners evaluate the same information if they knew the source’s name and motivations?
If you promised to protect a source’s identity, are you using production techniques that will insure the protection you promised? What if a lawyer subpoenas the raw tapes? Would the person be identifiable in the tape outtakes?
Do you understand your newsroom’s policy on confidentiality before you promise it to sources? Consider a policy that requires you to obtain the consent of your news managers before agreeing to anonymity, and a related policy requiring you reveal the source’s identity to news managers before the story involved airs. You should inform your source of this policy and that you might have to identity them to others in your newsroom.
Finally, the RTDNA guidelines ask journalists and managers to consider some final points when using confidential sources:
When reporting or referencing the work of another news outlet whose story contains an anonymous source, be sure to attribute the information to that outlet and describe its sources as clearly as possible.
Before accepting information “on background,” “not for attribution” or “off the record,” ensure that you and your source have a shared understanding of what any such terms mean. Be as specific as possible about the level of confidentiality you are providing.
Create a policy at your station for handling sources who may ask for anonymity after the interview has occurred.
Journalists should consider these guidelines when analyzing confidential sources as well as persons who do not wish to have their faces on camera or names used in reports.
These questions can be duplicated by documentary filmmakers as they consider using anonymous sources in their films. Where newsrooms or stations often have policies for a consistent use of anonymous sources, individual filmmakers and their teams can work to write their own personal guidelines for this approach to filmmaking.
Anonymous Sources – Society of Professional Journalists
Welcome to the Sausage Factory – New York Magazine
A Look at Journalists’ Use of Anonymous Sources – Voice of America
Anonymity – National Public Radio
What anonymous sources cost journalism – CNN
Q&A: Why do journalists use anonymous sources? – Arizona State University
When To Trust A Story That Uses Unnamed Sources – FiveThirtyEight.com
The Risk of Unnamed Sources? Unconvinced Readers – The New York Times
When is it OK to use anonymous sources? – The Associated Press
Ethical Ground Rules for Handling Sources – Ethical Journalism Network
What every journalist should know about anonymous sources – IJNet
Anonymous sources: leaving journalism’s false god behind – Poynter Institute
Readers: Anonymous Sources Affect Media Credibility – Poynter Institute
Confidential sources – Online News Association
Guidelines for Using Confidential Sources – Radio Television Digital News Association
Misrepresentation
When can a filmmaker or journalist mispresent herself for the sake of the story she is trying to tell? Once again, this is an act with potential ethical and legal consequences. Misrepresentation usually consists of the act of pretending to be something other than a journalist or filmmaker or directly lying about the truth of your identity. In visual journalism, this can sometimes involve the use of hidden cameras or microphones so as not to give away the fact that one is a journalist.
The single case that best pits the needs for journalists to tell the truth versus the potential benefit to a story by misrepresentation is the reporting done on the Food Lion grocery chain by ABC in 1992. After being tipped to unsanitary practices in the packaging and sale of meet at the chain, two ABC News producers pretended to be regular job applicants at two Food Lion stores in North and South Carolina to get jobs in the meat department of those stores. The two were hired and, with the help of hidden cameras, exposed the unsanitary practices on the ABC News program PrimeTime Live. Rather than suing about the broadcast itself, Food Lion sued about the action of the ABC employees, claiming the pair committed fraud in applying for the jobs but not revealing they were journalists, along with breach of duty of loyalty, trespass and unfair trade practices. The chain asked for compensatory damages to reclaim wages paid and the cost of training and employing the producers, along with punitive damages. After initially winning a judgement of more than $5.5 million against ABC, appellate courts eventually threw out the fraud claim, insisting it was used as a way around a classical libel claim, which was not substantiated by the facts. In the end, the only claims that remained intact against ABC and its employees were the breach of loyalty and trespass judgements and a nominal fine of just two dollars.
Despite ABC News eventually prevailing in the case, more than 25 years after the fact it still raises questions among journalists about when and where it is appropriate to misrepresent oneself to get a story. Many insist deception and misrepresentation be used only when the stakes are high and other methods have been exhausted. Ethicist Bob Steele developed a checklist for the Poynter Institute that journalists and filmmakers can use to determine whether to deceive for the sake of a story. Steele suggests that it might be appropriate to use deception, misrepresentation and/or hidden cameras if all of these criteria are met:
When the information obtained is of profound importance. It must be of vital public interest, such as revealing great “system failure” at the top levels, or it must prevent profound harm to individuals.
When all other alternatives for obtaining the same information have been exhausted.
When the journalists involved are willing to disclose the nature of the deception and the reason for it.
When the individuals involved and their news organization apply excellence, through outstanding craftsmanship as well as the commitment of time and funding needed to pursue the story fully.
When the harm prevented by the information revealed through deception outweighs any harm caused by the act of deception.
When the journalists involved have conducted a meaningful, collaborative, and deliberative decision-making process on the ethical and legal issues.
Steele goes on to say that deception is not justified in these cases:
To win a journalism or reporting prize.
To beat the competition.
To get the story with less expense of time and resources.
Doing it because “others already did it.”
When the subjects of the story are themselves unethical.
Some journalists lament that reporters do not use these techniques enough, citing a history of important investigative reporting that has resulted from news organizations setting up situations or infiltrating corrupt organizations by means of deception. This approach has been taken up by partisan media figures like James O’Keefe of Project Veritas, a right-wing sting operation focused on embarrassing mainstream journalists. Those mainstream journalists fear they have yielded this effective practice to the fringes.
Lying in the Name of Truth: When Is It Justified for Journalists? – Poynter Institute
Concealing your identity as a journalist – Online News Association
Undercover, under fire – Los Angeles Times
The Lying Game – American Journalism Review
Court allows misrepresentation claim to proceed – Reporters Committee for Freedom of the Press
The landmark Food Lion case – Reporters Committee for Freedom of the Press
Food Lion fraud award against ABC thrown out – Reporters Committee for Freedom of the Press
The Food Lion Case: Are Journalists Above the Law? – Cato Institute
Beyond ABC v. Food Lion – The New York Times
The Ethics of Undercover Journalism – Columbia Journalism Review
Is It Ever OK for Journalists to Lie? – Politico
Conflicts of interest
The codes of ethics of most journalism organizations and companies include a call for independence. For example, in its ethics handbook, National Public Radio (NPR) states: “To secure the public’s trust, we must make it clear that our primary allegiance is to the public. Any personal or professional interests that conflict with that allegiance, whether in appearance or in reality, risk compromising our credibility. We are vigilant in disclosing to both our supervisors and the public any circumstances where our loyalties may be divided – extending to the interests of spouses and other family members – and when necessary, we recuse ourselves from related coverage. Under no circumstances do we skew our reports for personal gain, to help NPR’s bottom line or to please those who fund us. Decisions about what we cover and how we do our work are made by our journalists, not by those who provide NPR with financial support.” This statement sums up the effort of most journalists to avoid conflicts of interest or, perhaps more importantly, the perception of a conflict of interest even where none exists.
That focus on perception is crucial to maintaining the trust of audiences for journalists. Actual conflict of interest is rare—journalists can move through the world without succumbing to the temptations of selling out. But the apparent conflict of interest happens much easier. For example, allowing a source to buy a journalist a free lunch is unlikely to change anything about the way a story is written. But the appearance exists that the journalist was “bought out,” and the public can believe that, even though the lunch had no impact on the story.
Political conflicts of interest are often what journalists try hardest to avoid. Some journalistic purists don’t even vote, saying that action may influence how they cover a candidate or issue. But most journalists point out that voting is a private act and cannot be used by the audience to perceive conflict of interest or bias. Still, nearly all journalists refrain from contributing to political candidates or campaigns, attending political rallies and events (unless there to cover them) or displaying political signs, bumper stickers, etc. on their property.
Recognizing conflicts of interest can be the first step to avoiding them. The Radio Television Digital News Association (RTDNA) has a series of questions in its coverage guidelines about conflicts of interest to ask oneself to determine if the appearance of a conflict of interest exists. Those questions are:
Will the private actions of a journalist with a news source or newsmaker give the appearance of an unprofessional connection? Audience members may react with suspicion to revelations of friendships or romances that develop between journalists and their sources—particularly if there is ongoing coverage of a beat or story. Journalists and their managers must realize relationships that would be perfectly acceptable between other adults might not be viewed in the same way when there is also a journalist-source relationship.
Will the actions of a journalist’s or newsroom manager’s family members with a news source or newsmaker give the appearance of an unprofessional connection? In the same way the personal actions of journalists on their private time may come into question, the actions of their spouses and family members may do the same. How will actions of those close to a journalist be perceived by audience members?
Is it ever acceptable to accept gifts from a source on a story? If so, is there a monetary value limit on that gift. The FCC’s rules call for specific disclosure of payment to air material. But what if the gift comes not in connection with airing specific content? What other motivation might there be for the gift? Consider the appearances created with the audience if the gift were disclosed publicly.
Will you accept free admission to parks and events you are covering, even when the general public must pay for the same access? Some ethicists insist journalists covering events requiring a ticket should pay the same fee ticket buyers do, while others insist free access is part of the coverage process. Managers should discuss what sorts of events merit free access and if any do not.
Will you accept free travel from sources? Most journalists will accept a ride in a pickup truck to the local farmer’s pumpkin patch, but will they also accept a free ride on an airline showing off a new route? Journalists and managers should consider whether they will accept free transportation and in what form. Will the station insist on buying tickets to those forms of transportation that require passengers to do the same? How will you divulge to your audience that you have taken the free transportation?
Will newsroom personnel be allowed to “moonlight” with interests that may be the subject of news coverage? Can on-air personalities do commercial appearances or voice over work? Many stations have arrangements that allow newsroom personnel to work elsewhere, but managers should ask what sort of conflicts of interest might be perceived from such relationships. For instance, can a sportscaster also broadcast games for a local team on its payroll? Many journalists see it as their duty to take part in public service work. Does that work present any conflicts of interest? RTDNA’s guidelines on for on-air charitable solicitations may be of some help.
Does the subject matter of a story benefit the reporter, the manager, or the station? Would members of the audience perceive a story is done for the monetary benefit of the station or any of its employees? If so, is there another source or approach for the story that would eliminate that potential conflict of interest?
Does the station have a policy on if and how employees can participate in political campaigns? Are journalists and their managers treated differently in the policy than other station employees? Journalists face the constant scrutiny of those looking for political bias in their coverage. Voting is a private act, but public participation in political events, campaign contributions, or personal messages of support on private time have no place in the life of most journalists. Stations should develop a very specific list of what political activity is never acceptable for their journalists and other employees.
Is there a system in place to allow journalists and managers to recuse themselves from editorial decisions about stories from which a conflict of interest—real or perceived—may arise? Do reporters and editors have a clear picture of what constitutes a conflict large enough to call for their withdrawal from a story? Managers should take time to consider inevitable conflicts that may arise and discuss how to deal with them before the conflict occurs.
Finally, is there a whistleblower system in the newsroom that allows anyone to point out possible conflicts of interest so that management can act on them? Is the review of all work for possible conflicts of interest a regular part of the newsroom culture?
As most journalists live and work in the communities they cover, some real and perceived conflicts of interest may be inevitable. Furthermore, some stories affect everyone—including journalists—and have the possibility to yield conflicts of interest that cannot be avoided. When those cases arise, journalists and managers can ask themselves the following questions about if and how they will reveal the conflicts to the public:
When and how will you disclose personal connections that could result in perceptions of conflict of interest even if managers have decided the reporter is able to cover a story? What if those connections are of a very personal nature? Managers must decide what information the public deserves so that audience members can make their own sound decisions about whether conflicts of interest exist.
Will you disclose connections the owners of your station have with sources and subjects of stories? The corporate ownership of most television and radio stations produces conflicts of interest in the area of business and finance. Managers should consider whether to disclose ownership relationships when covering stories about companies with common or connected ownership.
How will the connections above be inserted in the story? In the introduction, the tag, both, or in some other way? Managers should examine the proper place to run disclaimers of ownership and other possible conflicts of interest which properly inform the audience about the connection but do not create perceptions of conflict where they do not exist.
Finally, if an employee commits a violation of the station’s rules regarding conflict of interest, will that violation be disclosed to the public? If so, how? Aside from the station’s personnel policies for disciplining the employee, managers should consider how the violation would be perceived if the public found out and consider whether to make that information part of follow-up or continuing coverage of the story.
Filmmakers will find some of the above questions odd, considering the way in which they often interact with the characters in their films. Relationships that are far too close for comfort for a journalist can be essential to the filmmaking dynamic between director and character in a documentary. Still, the audience watching a completed film is trained to look for conflicts of interest in that film the same way it would in journalistic content. So even if a filmmaker considers all the relationships formed in making a film appropriate, it’s good to anticipate what audience members may think and ask about the dynamics of those relationships.
Guidelines for Avoiding Conflict of Interest – Radio Television Digital News Association
For many journalists, life is a conflict of interest – Society of Professional Journalists
6 Ways Reporters Can Avoid Conflicts of Interest – ThoughtCo
Independence – National Public Radio
When Is a Friendship a Conflict Of Interest? – National Public Radio
Journalists declaring conflicts of interest sounds simple, but … – The Conversation
Conflict of Interest: What Does it Mean? – Ethics AdviceLine for Journalists
Freelancers face unique conflict-of-interest dilemmas – Association of Health Care Journalists
Conflicts of Interest May Ensnare Journalists, Too – The New York Times
Conflicts of Interest: Creating remarkable journalism – City Paper
Media, administration deal with conflicts – Washington Post
Data and documents
It’s a clichéd view of journalism to picture a grizzled editor yelling at the young reporter to “Follow the paper trail!” But the cliché stems from the real foundations of how journalists work—by having the documentation to back up what they report. The recent film The Post revolves around the reporting of the Pentagon Papers, perhaps the biggest case of documentation in 20th Century journalism. Reporters at the Washington Post and New York Times sifted through those 7000 pages in an analog world, examining each by hand to find the newsworthiness of every single page.
Documents in the 21st Century come digitally and the sifting is often done by computers piloted by data reporters. Edward Snowden’s release of NSA documents to Laura Poitras and Glenn Greenwald happened electronically, putting perhaps 2 million documents into the filmmaker and journalist’s hands. Even releases of data a fraction of that size often need sophisticated software and computer skills to analyze the tsunami of information stored within.
To help train people how to examine and use the digital data that exists, organizations like the National Institute for Computer-Assisted Reporting (NICAR) have sprung up. NICAR offers filmmakers, journalists and citizens access to government databases, analysis for newsrooms or individuals sifting through data, training in acquiring, cleaning and analyzing data and guidance on how to use the data effectively and ethically.
The best practices of using data to tell a story follow a three-tier structure approach: acquisition, analysis and presentation. Acquisition refers, of course, to obtaining the data. In many cases, this can be a very difficult stage. Many times, the data come from government sources, which would seem to make this an easy task. But some agencies fight to block the release of data with large fees or by requiring very specific requests (as detailed in the public information section of this resource). Other times, the data are available, but contain such a massive amount of information that it is difficult to see where the story lies. That’s where the next step, analysis, comes in. Simple data sets can be analyzed “by hand,” with a filmmaker examining records and looking for patterns. But most modern datasets require computer-assisted analysis, using software as simple as Microsoft Excel or as complex as massive, custom-written programs. Special training is typically needed to do the analysis of complex datasets, so filmmakers can either seek out that training or partner with experts who have the tools and training to do the analysis. The final step is presentation, at which filmmakers excel based on their storytelling skills. Good data analysis often leads to simple stories. Those stories can be fleshed out with characters to tell the impact of what the data show. In some cases, data visualization can help filmmakers show the size, scope or pattern of the data analyzed. Like working with any animator, data visualization experts can join films as partners to help with the final presentation.
Paper Trail – Investigative Journalism Manual
Paper trails: documents and data you need – Investigative Reporters and Editors
How to organize and write an investigative journalism story – IJNet
What do journalists do with documents? The different kinds of document-driven stories – Overview
“A Document Frame of Mind” Goes a Long Way in Data Journalism – International Center for Journalists
Show the reporting and sources that support your work – American Press Institute
Why data driven documentation is the future of online journalism – Memeburn
Essential tools of the trade – Columbia Journalism Review
Organizing documents? Tag, categorize into an Excel file – National Center for Business Journalism
The National Institute for Computer-Assisted Reporting – Investigative Reporters and Editors
Introduction – Data Journalism Handbook
Giving data soul: Best practices for ethical data journalism – Data Driven Journalism
The Guardian: NSA Files Decoded – Import.io
A Guide to Computer Assisted Reporting – Poynter Institute
Data visualization DIY: Our Top Tools – Data Journalism Handbook
8 Interactive Data Storytelling Tools for Journalists – Visually
Featured Projects – Data Driven Journalism
How to Search Property Records – The Balance
Preventing errors
People make mistakes and journalists are people. So in any effort at journalism, the risk of mistakes is there. There are two types of error with which journalists must deal—errors made in the reporting process that are caught along the way and errors that make it into publication. That first type of error requires a great deal of effort on the part of journalists to find and eliminate so that it doesn’t become the second kind. This process is commonly called “verification.” What journalists do to snuff out errors before they go to press can be a lesson to filmmaker on how to prevent embarrassing—and sometimes costly—errors in the final product.
Dating back to the very beginning of journalistic practice, the role of an editor is crucial to error-free reporting and storytelling. Famed author—and editor—Timothy Foote proclaimed “Everyone needs an editor” and journalists swear by this maxim. In journalistic good practice no story, with the exception of pure live reporting on television or online, goes to the public without an editor looking at it first. Filmmakers have their own version of this practice as they typically have colleagues or trusted friends look over their cuts during the editing process. Directors, editors and producers play a rotating role of “editor” as films are put together.
But a less common practice among journalists and filmmakers alike is the use of a fact checker to verify all the verifiable information in a story. Fact checkers are still common at book publishers, some magazines and a handful of online news outlets. Their role is to independently verify anything and everything that can be challenged, from simply checking the reported age of an individual to a line by line verification of complex financial information. As journalists rush more than ever to be first with stories in a world where every outlet competes online, the need for slowness in reporting to allow fact checkers to do their work is stronger than ever before. Filmmakers enjoy a reprieve from the need to be first and have an opportunity to use fact checkers fully.
Why Journalists Make Mistakes & What We Can Do About Them – Poynter Institute
Journalists Should Take Note of New York Times Error – The Balance
Learn How to Become a Fact Checker – The Balance
How to make sure journalists get your story correct – Spark Minute
Here’s How the First Fact-Checkers Were Able to Do Their Jobs Before the Internet – Time
Five Tips for Fact Checking Your Content! – The Startup
7 steps to better fact-checking – Politifact
Verification and Fact Checking – Verification Handbook
Part One: First Amendment Rights and Guarantees
Part Two: Public Information, Sunshine and the Freedom of Information Act
Part Three: Respect, Privacy and Freedom from Harm
Part Four: Transparency, Accountability and Independence
Part Five: Copyright Laws, Fair Use, Licensing and Insurance
Part Six: Journalism Organizations and Resources
Part Seven: Journalism Organizations’ Codes of Ethics
Credits
Part Five: Copyright Laws, Fair Use, Licensing and Insurance
Copyright history and overview
American copyright protections stem from British laws that date back to the beginning of printing and publishing. The U.S. Constitution in 1787 granted the federal government the ability to regulate the rights of authors in Article I, Section 8, saying: “The Congress shall have Power…
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
Three years later, Congress enacted the Copyright Act of 1790, detailing the rights of the creators of intellectual content. That act established the right to copyright and what that right meant for the owners of the intellectual property. A major revision of the act in 1909 gave us the bulk of what current copyright law states, though it was focused only on the technology of the time and would fall behind the advancements of the 20th Century. In 1976, a new revision addressed the advent of electronic communications and motion pictures, among other new technologies. The act was further modernized to address the digital revolution in 1998 with the Digital Millennium Copyright Act (DCMA). Further revisions, new acts and court cases continue to update the law to account for the rapid advancement of technology surrounding intellectual property.
All these changes and advancements in the law stem from the notion that the authors of books should have the right to prevent people from copying their works. That has been interpreted to mean that, while one cannot copy the exact work, the ideas contained within the work cannot be protected from copying. The type of work protected has been interpreted to be literary, musical, dramatic, choreographic, pictoral or graphic, audiovisual, architectural work or sound recording. The law also calls for the work to be “fixed,” in this case meaning that it is a tangible form of expression.
The law also addresses who owns the copyright. The author of the work is presumed to be the owner of the copyright. But the identity of the author is subject to interpretation. While many works are the property of the person who created it, works for hire are interpreted as the property of the employer of the person who actually conceived the work, or given to a commissioning party.
One misconception many have about copyrights in the United States is that the work must be registered with the U.S. Copyright Office to receive legal protection. In fact, the law recognizes that any works is copyrighted at the moment of its creation in a fixed, tangible medium. Formal registration with the U.S. Copyright Office can be advantageous for several reasons. First, it establishes an official creation date. Second, it provides evidence for court in the case of a copyright claim. It also allows copyright holders to seek additional damages in court. And finally, it helps establish a record with U.S. Customs to prevent the importation of material that could infringe on the copyright.
Copyright law as applied to filmmakers comes into play in two areas. First, it protects the creative work of filmmakers to prevent unauthorized copying. But it also prevents filmmakers from using the copyrighted material of others except in those cases where permission is granted or fair use allows the material to be included in other work.
One final note: copyrights are not trademarks. Trademarks protect the marks, names and images that differentiate companies and their goods.
Copyright Timeline: A History of Copyright in the United States – Association of Research Libraries
Copyright Basics – The Copyright Society of the USA
Law for Artists: The Basics of Copyright – Chicago Artists Resource
10 Basics About Copyright Everyone Needs to Know – Plagiarism Today
Copyright Law in the United STATES – Bitlaw
About Copyright – Copyright Clearance Center
Copyright Registration – Copyright Alliance
Trademark vs. Copyright: Everything You Need to Know – Upcounsel
Material that cannot be copyrighted
Some material cannot be copyrighted under current laws. Most importantly, and stemming back to the original British concept, one cannot copyright ideas. Written or other presentations about ideas can be copyrighted, but the ideas themselves cannot. Additionally, works that have not been fixed cannot be copyrighted. That could be, for example, an extemporaneous monologue performed live on stage but not recorded. Also not protected by copyright law are very short names, titles or expressions. For example, the Internet Movie Database (IMDB) lists 128 works with the title “The Visit”—and that’s just the titles in English! These short writings cannot be copyrighted because they do not reach the minimum required amount of authorship. Finally, the law does not protect what it calls “useful items.” These include everyday objects that one would use for utilitarian purposes. This part of the law is vague, but suggests one cannot copyright the cut of a basic pair of pants, but can copyright the print on the fabric.
Works Unprotected by Copyright Law – Bitlaw
Creative Works You Can and Can’t Copyright – The Balance
What Can’t Be Copyrighted & Why? The Odd, Unusual & Plain Weird… – Who is Hosting This?
Works Not Covered By Copyright – Digital Media Law Project
15 Surprising Things That Can’t Be Copyrighted – Inc.
5 Things That Can’t Be Copyrighted – Plagiarism Today
Using copyrighted material
Material that is copyrighted or has been copyrighted in the past can be used in others’ creative work. Material for which the copyright has expired is considered to be in the public domain and is free for anyone to use in any form. Determining the duration of a copyright is complicated because the law at the time the material was created determines its copyright lifespan. Most works created before 1923 are now, by statute, in the public domain (exceptions exist based on when the work was actually recorded versus when it was created). Works published from 1923 to 1977 without a copyright notice are also in the public domain due to legal requirements at that time. These specific rules get more complicated as time goes forward. The best method to determining current public domain status is to consult the U.S. Copyright Office or charts developed by copyright experts (linked below).
Some material goes into the public domain as soon as it is created. In the United States, any photographs, film, video audio and other materials that is produced by a government agency is in the public domain—with, of course, the exception of classified materials. For example, NASA footage of space launches, moon landings and other achievements is all in the public domain and has been ever since they were created.
For material that is not in the public domain, the safest approach to using the material is to obtain permission. Obtaining permission requires a multistep process to guarantee a filmmaker’s rights are protected once the material is incorporated in her work. The first step once it is clear the material is not in the public domain is to identify the owner. That can be a laborious task as the original author may have transferred ownership or the copyright might be on a work for hire and therefore owned by an entity other than the original author.
One the owner is identified, the next step is to determine the rights for which one is asking permission. Most filmmaker want rights for the public exhibition of their work. But most filmmakers do not need exclusive rights, which would be more expensive to obtain than non-exclusive rights. Filmmakers must also determine a duration for the permission. Limited permission or one-time use may be cheaper than permanent permission in perpetuity. And the geographic scope of the permission also matters. Permission for worldwide distribution on all platforms could cost more than a more limited area of release.
As with all agreements, it is best to get the final permission to use the work in writing. That protects the filmmaker and can act as evidence in court should a conflict arise.
Duration of Copyright – U.S. Copyright Office
Copyright Term and the Public Domain in the United States – Cornell University
Is it in the Public Domain? – University of California-Berkeley
Welcome to the Public Domain – Stanford University
The myth of the pre-1923 public domain – LibraryLaw Blog
New Rules for Using Public Domain Materials – CopyLaw
The Basics of Getting Permission – Stanford University
How to Find a Copyright Owner – Ohio State University
Locating Copyright Holders – CopyLaw
How to Get Permission to Use Copyrighted Material – The Law Dictionary
Copyright Registration for Motion Pictures, Including Video Recordings – Copyright.gov
Need Public Domain Footage for Your Documentary? Here Are 8 Great Sources – No Film School
Journalism *: Stock footage – University of Southern California
Principles of fair use
Aside from public domain content and material for which a filmmaker gets permission, the other approach to using copyrighted material is to claim fair use of the content. The concept behind fair use is that the public has a right to use a portion of copyrighted material in order to comment on or criticize it. In modern law, Section 107 of the Copyright Act of 1976 states “…the fair use of a copyrighted work, including such use by reproduction in copies or phono records or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” The law adds “news reporting” to the list of acceptable fair use instances. That protects journalists in many cases and can apply to filmmakers, particularly if they consider their work to be of a journalistic nature. Also added is “teaching,” which again can apply to documentaries that consider themselves to be educational.
The section goes on to state there are four factors to be considered when deciding whether a particular application is fair use. According to the act, those factors are:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The first factor targets how the copyrighted material will be used. Courts have ruled that when the new work is transformative of the copyrighted material, a fair use condition can exist. In other words, if the original material is being made over as part of a new creative work, that would be an instance of fair use. But if the material is taken wholesale and dropped into the new work to serve the same purpose it does outside the work, that may not be transformative and not make a strong case for fair use. Also in this factor, usage that is intended purely to make a profit will not make as strong a fair use case as usage that aims to educate or enlighten without a profit motive.
The second factor is vague, but the courts tend to give wider fair use latitude to less creative work and view it with a narrower scope for more creative work.
When considering the amount used in relation to the copyright as a whole, the less copyrighted material used, the easier it is to make a fair use case. Using five seconds of a 90-minute movie can be argued as fair use much easier than using four minutes of a five-minute song.
The final consideration looks at how much of an impact the fair use instance has on the value of the original copyrighted work. If the material being used in the new work substantially reduces the desire to see the original work, thus lowering its value, that is unlikely to be viewed favorably as an instance of fair use.
It is not specifically mentioned in the law, but the notion that citing the source material is enough to allow fair use is often claimed. However, it is not supported by case law. The four factors above tend to determine the basis for legal decisions. Citing the source of the copyrighted material in the new work does not have an impact on the four factors to be considered.
Set of Principles in Fair Use for Journalism – Center for Media & Social Impact
Documentary Filmmakers’ Statement of Best Practices in Fair Use – Center for Media & Social Impact
Fair Use Frequently Asked Questions – Center for Media & Social Impact
Stop Paying for Footage! The 411 on Fair Use – No Film School
Can I use that? A legal primer for journalists – Columbia Journalism Review
Copyright Case Opinion Summaries – Stanford University
Measuring Fair Use: The Four Factors – Stanford University
Fair Use: The Documentarian’s Best Friend – International Documentary Association
Fair use doctrine – Washington State University
Fair Use: The Four Factors Courts Consider in a Copyright Infringement Case – Nolo
Attention, Documentary Filmmakers: 4 Things to Understand About Fair Use – IndieWire
Clip Show: A Practical Guide to Fair Use – International Documentary Association
The Ultimate Guide to Fair Use and Copyrights for Filmmakers – frame.io
Examples of Successful Fair Use in Documentary Film – Center for Media & Social Impact
Fair Use Visua – Center for Media & Social Impact
The ‘Fair Use’ Rule: When Use of Copyrighted Material Is Acceptable – Nolo
Fair Use in Copyright Law – BitLaw
Tips for documentary filmmakers – Hiscox
Fair Use for Documentaries – Gallagher, Callahan & Gartrell
7 Important Tips on Using Archives & Recreation in Documentary – No Film School
Fair Use Myths & Facts – Fair Use Week
Life rights and personal stories
The First Amendment protects journalists telling the stories of real people. The courts have long held that people do not need to give their consent to be covered by the news media. Logically, if the opposite were the case and journalists needed permission to cover newsworthy people, no one who would see himself ever put in a bad light by coverage would allow it. So journalists never acquire life rights for the people they cover. Filmmakers doing journalistic work can safely assume they carry the same First Amendment rights to use the stories of real people without permission or payment for rights.
Facts that are in the public domain, such as in the public record, are available to journalists, filmmakers and the public in general with no need to pay for rights. Someone doing a film based on these public records has no expectation to obtain the life rights of people whose information is contained in those records.
What a life rights agreement with a character in a documentary can do for a filmmaker is two-fold. First, it is a legal document in which the subject promises to work with the filmmaker to provide information and to release the filmmaker from any claims that might come later from using that information. The other purpose life rights can serve for a documentary filmmaker is in the event a fiction filmmaker wants to tell the same story. In that case, a life rights agreement is more likely to compel the fiction filmmaker to work with the documentary filmmaker and make an adaptation deal for the documentary.
8 Legal Tips for Documentary Filmmakers – IndieWire
Purchasing Life Story Rights – Mark Litwak
Acquiring Story Rights – Lehmann Strobel
Cinema Law: What to Put in A Life Rights Contract – MovieMaker
Insurance needs
Most commercial journalism operations purchase libel insurance to protect themselves from lawsuits and claims. Though they work under the assumption that they will not be found guilty of libel in their journalistic work, the insurance helps cover legal fees (because all journalists live by the maxim, “They probably won’t win, but anyone can sue me for anything anytime”) and settlements, should that be more cost effective.
Filmmakers have more exposure on the legal front because their First Amendment rights aren’t always as clear cut as their journalistic cousins. Errors and omission (E & O) insurance provides protection in libel cases, but also in cases of contract disputes, copyright violation claims, music clearance mistakes, invasion of privacy claims and more. The insurance is often bought near the end of production and is usually required for festival play or public exhibition (when claims are likely to arise).
Insurance can be taken out at the beginning of the production to protect the filmmakers from liability claims, equipment loss, workers compensation claims and more. This insurance is highly customizable to be fitted to the production.
Should you buy insurance for your documentary? – Desktop Documentaries
The Producer’s Guide to Film Production Insurance – Studio Binder
Filmmaker Must-Read: Attorney Take on Errors & Omissions Insurance – IndieWire
Part One: First Amendment Rights and Guarantees
Part Two: Public Information, Sunshine and the Freedom of Information Act
Part Three: Respect, Privacy and Freedom from Harm
Part Four: Transparency, Accountability and Independence
Part Five: Copyright Laws, Fair Use, Licensing and Insurance
Part Six: Journalism Organizations and Resources
Part Seven: Journalism Organizations’ Codes of Ethics
Credits
Part Six: Journalism Organizations and Resources
List of journalism organization web sites with additional supporting material
American Copy Editors Society (ACES)
American Society of Newspaper Editors (ASNE)
Asian American Journalism Association (AAJA)
Associated Press Managing Editors (APME)
Association for Education in Journalism and Mass Communication (AEJMC)
Association of Health Care Journalists (AHCJ)
Committee of Concerned Journalists (CCJ)
Education Writers Association (EWA)
Freedom Forum First Amendment Center
Freedom of Information Center (FOIC)
International Journalists Network (IJNET)
Investigative Reporters and Editors (IRE)
Journalism Education Association (JEA)
National Association of Black Journalists (NABJ)
National Association of Hispanic Journalists (NAHJ)
National Association of Minority Media Executives (NAMME)
National Association of Science Writers (NASW)
National Center for Business Journalism
National Federation of Press Women (NFPW)
National Freedom of Information Coalition
National Institute for Computer Assisted Reporting (NICAR)
National Lesbian & Gay Journalists Association (NLGJA)
National Newspaper Association (NNA)
National Press Photographers Association (NPPA)
Native American Journalists Association (NAJA)
Online News Association (ONA)
The Poynter Institute for Media Studies
Project for Excellence in Journalism
Radio Television Digital News Association (RTDNA)
Religion News Association (RNA)
Reporters Committee for Freedom of the Press
Society of American Business Editors and Writers (SABEW)
Society of Environmental Journalists (SEJ)
Society of Professional Journalists (SPJ)
South Asian Journalists Association (SAJA)
Unity (NABJ, NAHJ, AAJA and NAJA in concert)
Part One: First Amendment Rights and Guarantees
Part Two: Public Information, Sunshine and the Freedom of Information Act
Part Three: Respect, Privacy and Freedom from Harm
Part Four: Transparency, Accountability and Independence
Part Five: Copyright Laws, Fair Use, Licensing and Insurance
Part Six: Journalism Organizations and Resources
Part Seven: Journalism Organizations’ Codes of Ethics
Credits
Part Seven: Journalism Organizations’ Codes of Ethics
Listed below are the codes of ethics from a number of major journalism organizations. While some of the policies and procedures will seem odd to a filmmaker’s eyes, they are included here as food for thought to help filmmakers determine their own personal codes of ethics.
Society of Professional Journalists (SPJ)
Radio Television Digital News Association (RTDNA)
National Press Photographers Association (NPPA)
Society of American Business Editors and Writers (SABEW)
Society of Professional Journalists (SPJ)
Preamble
Members of the Society of Professional Journalists believe that public enlightenment is the forerunner of justice and the foundation of democracy. Ethical journalism strives to ensure the free exchange of information that is accurate, fair and thorough. An ethical journalist acts with integrity.
The Society declares these four principles as the foundation of ethical journalism and encourages their use in its practice by all people in all media.
Seek Truth and
Report It
Ethical journalism should be accurate and fair. Journalists should be honest and courageous in gathering, reporting and interpreting information.
Journalists should:
– Take responsibility for the accuracy of their work. Verify information before releasing it. Use original sources whenever possible.
– Remember that neither speed nor format excuses inaccuracy.
– Provide context. Take special care not to misrepresent or oversimplify in promoting, previewing or summarizing a story.
– Gather, update and correct information throughout the life of a news story.
– Be cautious when making promises, but keep the promises they make.
– Identify sources clearly. The public is entitled to as much information as possible to judge the reliability and motivations of sources.
– Consider sources’ motives before promising anonymity. Reserve anonymity for sources who may face danger, retribution or other harm, and have information that cannot be obtained elsewhere. Explain why anonymity was granted.
– Diligently seek subjects of news coverage to allow them to respond to criticism or allegations of wrongdoing.
– Avoid undercover or other surreptitious methods of gathering information unless traditional, open methods will not yield information vital to the public.
– Be vigilant and courageous about holding those with power accountable. Give voice to the voiceless.
– Support the open and civil exchange of views, even views they find repugnant.
– Recognize a special obligation to serve as watchdogs over public affairs and government. Seek to ensure that the public’s business is conducted in the open, and that public records are open to all.
– Provide access to source material when it is relevant and appropriate.
– Boldly tell the story of the diversity and magnitude of the human experience. Seek sources whose voices we seldom hear.
– Avoid stereotyping. Journalists should examine the ways their values and experiences may shape their reporting.
– Label advocacy and commentary.
– Never deliberately distort facts or context, including visual information. Clearly label illustrations and re-enactments.
– Never plagiarize. Always attribute.
Minimize Harm
Ethical journalism treats sources, subjects, colleagues and members of the public as human beings deserving of respect.
Journalists should:
– Balance the public’s need for information against potential harm or discomfort. Pursuit of the news is not a license for arrogance or undue intrusiveness.
– Show compassion for those who may be affected by news coverage. Use heightened sensitivity when dealing with juveniles, victims of sex crimes, and sources or subjects who are inexperienced or unable to give consent. Consider cultural differences in approach and treatment.
– Recognize that legal access to information differs from an ethical justification to publish or broadcast.
– Realize that private people have a greater right to control information about themselves than public figures and others who seek power, influence or attention. Weigh the consequences of publishing or broadcasting personal information.
– Avoid pandering to lurid curiosity, even if others do.
– Balance a suspect’s right to a fair trial with the public’s right to know. Consider the implications of identifying criminal suspects before they face legal charges.
– Consider the long-term implications of the extended reach and permanence of publication. Provide updated and more complete information as appropriate.
Act Independently
The highest and primary obligation of ethical journalism is to serve the public.
Journalists should:
– Avoid conflicts of interest, real or perceived. Disclose unavoidable conflicts.
– Refuse gifts, favors, fees, free travel and special treatment, and avoid political and other outside activities that may compromise integrity or impartiality, or may damage credibility.
– Be wary of sources offering information for favors or money; do not pay for access to news. Identify content provided by outside sources, whether paid or not.
– Deny favored treatment to advertisers, donors or any other special interests, and resist internal and external pressure to influence coverage.
– Distinguish news from advertising and shun hybrids that blur the lines between the two. Prominently label sponsored content.
Be Accountable and Transparent
Ethical journalism means taking responsibility for one’s work and explaining one’s decisions to the public.
Journalists should:
– Explain ethical choices and processes to audiences. Encourage a civil dialogue with the public about journalistic practices, coverage and news content.
– Respond quickly to questions about accuracy, clarity and fairness.
– Acknowledge mistakes and correct them promptly and prominently. Explain corrections and clarifications carefully and clearly.
– Expose unethical conduct in journalism, including within their organizations.
– Abide by the same high standards they expect of others.
Radio Television Digital News Association (RTDNA)
Guiding Principles:
Journalism’s obligation is to the public. Journalism places the public’s interests ahead of commercial, political and personal interests. Journalism empowers viewers, listeners and readers to make more informed decisions for themselves; it does not tell people what to believe or how to feel.
Ethical decision-making should occur at every step of the journalistic process, including story selection, news-gathering, production, presentation and delivery. Practitioners of ethical journalism seek diverse and even opposing opinions in order to reach better conclusions that can be clearly explained and effectively defended or, when appropriate, revisited and revised.
Ethical decision-making – like writing, photography, design or anchoring – requires skills that improve with study, diligence and practice.
The RTDNA Code of Ethics does not dictate what journalists should do in every ethical predicament; rather it offers resources to help journalists make better ethical decisions – on and off the job – for themselves and for the communities they serve.
Journalism is distinguished from other forms of content by these guiding principles:
-Truth and accuracy above all
The facts should get in the way of a good story. Journalism requires more than merely reporting remarks, claims or comments. Journalism verifies, provides relevant context, tells the rest of the story and acknowledges the absence of important additional information.
For every story of significance, there are always more than two sides. While they may not all fit into every account, responsible reporting is clear about what it omits, as well as what it includes.
Scarce resources, deadline pressure and relentless competition do not excuse cutting corners factually or oversimplifying complex issues.
“Trending,” “going viral” or “exploding on social media” may increase urgency, but these phenomena only heighten the need for strict standards of accuracy.
Facts change over time. Responsible reporting includes updating stories and amending archival versions to make them more accurate and to avoid misinforming those who, through search, stumble upon outdated material.
Deception in newsgathering, including surreptitious recording, conflicts with journalism’s commitment to truth. Similarly, anonymity of sources deprives the audience of important, relevant information. Staging, dramatization and other alterations – even when labeled as such – can confuse or fool viewers, listeners and readers. These tactics are justified only when stories of great significance cannot be adequately told without distortion, and when any creative liberties taken are clearly explained.
Journalism challenges assumptions, rejects stereotypes and illuminates – even where it cannot eliminate – ignorance.
Ethical journalism resists false dichotomies – either/or, always/never, black/white thinking – and considers a range of alternatives between the extremes.
-Independence and transparency
Editorial independence may be a more ambitious goal today than ever before. Media companies, even if not-for-profit, have commercial, competitive and other interests – both internal and external — from which the journalists they employ cannot be entirely shielded. Still, independence from influences that conflict with public interest remains an essential ideal of journalism. Transparency provides the public with the means to assess credibility and to determine who deserves trust.
Acknowledging sponsor-provided content, commercial concerns or political relationships is essential, but transparency alone is not adequate. It does not entitle journalists to lower their standards of fairness or truth.
Disclosure, while critical, does not justify the exclusion of perspectives and information that are important to the audience’s understanding of issues.
Journalism’s proud tradition of holding the powerful accountable provides no exception for powerful journalists or the powerful organizations that employ them. To profit from reporting on the activities of others while operating in secrecy is hypocrisy.
Effectively explaining editorial decisions and processes does not mean making excuses. Transparency requires reflection, reconsideration and honest openness to the possibility that an action, however well intended, was wrong.
Ethical journalism requires owning errors, correcting them promptly and giving corrections as much prominence as the error itself had.
Commercial endorsements are incompatible with journalism because they compromise credibility. In journalism, content is gathered, selected and produced in the best interests of viewers, listeners and readers – not in the interests of somebody who paid to have a product or position promoted and associated with a familiar face, voice or name.
Similarly, political activity and active advocacy can undercut the real or perceived independence of those who practice journalism. Journalists do not give up the rights of citizenship, but their public exercise of those rights can call into question their impartiality.
The acceptance of gifts or special treatment of any kind not available to the general public creates conflicts of interest and erodes independence. This does not include the access to events or areas traditionally granted to working journalists in order to facilitate their coverage. It does include “professional courtesy” admission, discounts and “freebies” provided to journalists by those who might someday be the subject of coverage. Such goods and services are often offered as enticements to report favorably on the giver or rewards for doing so; even where that is not the intent, it is the reasonable perception of a justifiably suspicious public.
Commercial and political activities, as well as the acceptance of gifts or special treatment, cause harm even when the journalists involved are “off duty” or “on their own time.”
Attribution is essential. It adds important information that helps the audience evaluate content and it acknowledges those who contribute to coverage. Using someone else’s work without attribution or permission is plagiarism.
-Accountability for consequences
Journalism accepts responsibility, articulates its reasons and opens its processes to public scrutiny.
Journalism provides enormous benefits to self-governing societies. In the process,it can create inconvenience, discomfort and even distress. Minimizing harm, particularly to vulnerable individuals, should be a consideration in every editorial and ethical decision.
Responsible reporting means considering the consequences of both the newsgathering – even if the information is never made public – and of the material’s potential dissemination. Certain stakeholders deserve special consideration; these include children, victims, vulnerable adults and others inexperienced with American media.
Preserving privacy and protecting the right to a fair trial are not the primary mission of journalism; still, these critical concerns deserve consideration and to be balanced against the importance or urgency of reporting.
The right to broadcast, publish or otherwise share information does not mean it is always right to do so. However, journalism’s obligation is to pursue truth and report, not withhold it. Shying away from difficult cases is not necessarily more ethical than taking on the challenge of reporting them. Leaving tough or sensitive stories to non-journalists can be a disservice to the public.
National Press Photographers Association (NPPA)
Preamble
The National Press Photographers Association, a professional society that promotes the highest standards in visual journalism, acknowledges concern for every person’s need both to be fully informed about public events and to be recognized as part of the world in which we live.
Visual journalists operate as trustees of the public. Our primary role is to report visually on the significant events and varied viewpoints in our common world. Our primary goal is the faithful and comprehensive depiction of the subject at hand. As visual journalists, we have the responsibility to document society and to preserve its history through images.
Photographic and video images can reveal great truths, expose wrongdoing and neglect, inspire hope and understanding and connect people around the globe through the language of visual understanding. Photographs can also cause great harm if they are callously intrusive or are manipulated.
This code is intended to promote the highest quality in all forms of visual journalism and to strengthen public confidence in the profession. It is also meant to serve as an educational tool both for those who practice and for those who appreciate photojournalism. To that end, The National Press Photographers Association sets forth the following.
CODE OF ETHICS
Visual journalists and those who manage visual news productions are accountable for upholding the following standards in their daily work:
Be accurate and comprehensive in the representation of subjects.
Resist being manipulated by staged photo opportunities.
Be complete and provide context when photographing or recording subjects. Avoid stereotyping individuals and groups. Recognize and work to avoid presenting one’s own biases in the work.
Treat all subjects with respect and dignity. Give special consideration to vulnerable subjects and compassion to victims of crime or tragedy. Intrude on private moments of grief only when the public has an overriding and justifiable need to see.
While photographing subjects do not intentionally contribute to, alter, or seek to alter or influence events.
Editing should maintain the integrity of the photographic images’ content and context. Do not manipulate images or add or alter sound in any way that can mislead viewers or misrepresent subjects.
Do not pay sources or subjects or reward them materially for information or participation.
Do not accept gifts, favors, or compensation from those who might seek to influence coverage.
Do not intentionally sabotage the efforts of other journalists.
Do not engage in harassing behavior of colleagues, subordinates or subjects and maintain the highest standards of behavior in all professional interactions.
Ideally, visual journalists should:
Strive to ensure that the public’s business is conducted in public. Defend the rights of access for all journalists.
Think proactively, as a student of psychology, sociology, politics and art to develop a unique vision and presentation. Work with a voracious appetite for current events and contemporary visual media.
Strive for total and unrestricted access to subjects, recommend alternatives to shallow or rushed opportunities, seek a diversity of viewpoints, and work to show unpopular or unnoticed points of view.
Avoid political, civic and business involvements or other employment that compromise or give the appearance of compromising one’s own journalistic independence.
Strive to be unobtrusive and humble in dealing with subjects.
Respect the integrity of the photographic moment.
Strive by example and influence to maintain the spirit and high standards expressed in this code. When confronted with situations in which the proper action is not clear, seek the counsel of those who exhibit the highest standards of the profession. Visual journalists should continuously study their craft and the ethics that guide it.
Online News Association (ONA)
The ONA Social Newsgathering Ethics Code is a document that is intended to gather the support of news and journalism organizations of all sizes around the globe to endorse a set of standards and practices relating to the gathering and use of content created by members of the public.
The below organizations, groups, companies and individuals endorse and support these standards as best practices for the industry and acknowledge that integration of each element into their own operations would be desirable. This code may also be used to form the basis of a new UGC ethics code by any individual or organization.
If your news organization wants to be listed as a supporter of the code, please send an email with your organization’s name to socialnewsgathering@journalists.org.
The standards and practices are as follows:
▪ Endeavoring to verify the authenticity of user-generated content before publishing or distributing it, holding it to standards that are equal or equivalent to those maintained for content acquired through other means.
▪ Being transparent with the audience about the verification status of UGC.
▪ Considering the emotional state and safety of contributors.
▪ Considering the risk inherent in asking a contributor to produce and deliver UGC, including whether it incentivizes others to take unnecessary risks.
▪ Considering technical measures to ensure anonymity of sources when required.
▪ Seeking informed consent for the use of UGC through direct communication with the individual who created it.
▪ Being transparent about how content will be used and distributed to other platforms.
▪ Giving due credit to the owner of the content providing that consideration has been given to potential consequences, including their physical, mental and reputational well-being.
▪ Endeavoring to inform and equip journalists to confront the dangers of engaging with sources through social media networks and the digital footprint they leave behind.
▪ Supporting and assisting journalists who are confronted with graphic or otherwise disturbing content. Maintaining an organizational culture that enables journalists to seek help or speak out when they need to protect their mental health.
Society of American Business Editors and Writers (SABEW)
Statement of Purpose:
As business and financial journalists, we recognize we are guardians of the public trust and must do nothing to abuse this obligation.
It is not enough that we act with honest intent; as journalists, we must conduct our professional lives in a manner that avoids even the suggestion of personal gain, or any misuse of the power of the press.
It is with this acknowledgment that we offer these guidelines for those who work in business and financial journalism:
Personal investments and relationships:
Avoid any practice that might compromise or appear to compromise objectivity or fairness.
Never let personal investments influence content. Disclose investment positions to your superior or directly to the public.
Disclose personal or family relationships that might pose conflicts of interest.
Avoid active trading and other short-term profit-seeking opportunities, as such activities are not compatible with the independent role of the business journalist.
Do not take advantage of inside information for personal gain.
Sources:
Insure confidentiality of information during the reporting process, and make every effort to keep information from finding its way to those who might use it for gain before it is disseminated to the public.
Do not alter information, delay or withhold publication or make concessions relating to news content to any government.
Gifts and favors:
In the course of professional activity, accept no gift or special treatment worth more than token value.
Accept no out-of-town travel paid for by outside sources.
Carefully examine offers of free-lance work or speech honoraria to assure such offers are not attempts to influence content.
Disclose to a supervisor any offer of future employment or outside income that springs from the journalist’s professional activities or contacts.
Accept food or refreshments of ordinary value only if absolutely necessary, and only during the normal course of business.
Editorial Integrity:
Publishers, owners and newsroom managers should establish policies and guidelines to protect the integrity of business news coverage.
Regardless of news platform, there should be a clear delineation between advertising and editorial content.
Material produced by editorial staff should be used only in sections, programming or pages controlled by editorial departments.
Content, sections or programming controlled by advertising departments should be distinctly different from news sections in typeface, layout and design. Advertising content should be identified as such.
Promising a story in exchange for advertising or other considerations is unethical.
Using outside material:
Using articles or columns from non-journalists is potentially deceptive and poses inherent conflicts of interest. This does not apply to content that is clearly labeled opinion or viewpoint, or to submissions identified as coming directly from the public, such as citizen blogs or letters to the editor.
Submissions should be accepted only from freelancers who abide by the same ethical policies as staff members.
Technology:
Business journalists should take the lead in adapting professional standards to new forms of journalism as technologies emerge and change.
The business journalist should encourage fellow journalists to abide by these standards and principles.
The Associated Press (AP)
For more than a century and a half, men and women of The Associated Press have had the privilege of bringing truth to the world. They have gone to great lengths, overcome great obstacles — and, too often, made great and horrific sacrifices — to ensure that the news was reported quickly, accurately and honestly. Our efforts have been rewarded with trust: More people in more places get their news from the AP than from any other source.
In the 21st century, that news is transmitted in more ways than ever before — in print, on the air and on the Web, with words, images, graphics, sounds and video. But always and in all media, we insist on the highest standards of integrity and ethical behavior when we gather and deliver the news.
That means we abhor inaccuracies, carelessness, bias or distortions. It means we will not knowingly introduce false information into material intended for publication or broadcast; nor will we alter photo or image content. Quotations must be accurate, and precise.
It means we always strive to identify all the sources of our information, shielding them with anonymity only when they insist upon it and when they provide vital information — not opinion or speculation; when there is no other way to obtain that information; and when we know the source is knowledgeable and reliable.
It means we don’t plagiarize.
It means we avoid behavior or activities that create a conflict of interest and compromise our ability to report the news fairly and accurately, uninfluenced by any person or action.
It means we don’t misidentify or misrepresent ourselves to get a story. When we seek an interview, we identify ourselves as AP journalists.
It means we don’t pay newsmakers for interviews, to take their photographs or to film or record them.
It means we must be fair. Whenever we portray someone in a negative light, we must make a real effort to obtain a response from that person. When mistakes are made, they must be corrected — fully, quickly and ungrudgingly.
And ultimately, it means it is the responsibility of every one of us to ensure that these standards are upheld. Any time a question is raised about any aspect of our work, it should be taken seriously.
“I have no thought of saying The Associated Press is perfect. The frailties of human nature attach to it,” wrote Melville Stone, the great general manager of the AP. But he went on to say that “the thing it is striving for is a truthful, unbiased report of the world’s happenings … ethical in the highest degree.”
He wrote those words in 1914. They are true today.
* * *
The policies set forth in these pages are central to the AP’s mission; any failure to abide by them is subject to review, and could result in disciplinary action, ranging from admonishment to dismissal, depending on the gravity of the infraction.
STANDARDS AND PRACTICES ANONYMOUS SOURCES:
Transparency is critical to our credibility with the public and our subscribers. Whenever possible, we pursue information on the record. When a newsmaker insists on background or off-the-record ground rules, we must adhere to a strict set of guidelines, enforced by AP news managers.
Under AP’s rules, material from anonymous sources may be used only if:
The material is information and not opinion or speculation, and is vital to the news report.
The information is not available except under the conditions of anonymity imposed by the source.
The source is reliable, and in a position to have accurate information.
Reporters who intend to use material from anonymous sources must get approval from their news manager before sending the story to the desk. The manager is responsible for vetting the material and making sure it meets AP guidelines. The manager must know the identity of the source, and is obligated, like the reporter, to keep the source’s identity confidential. Only after they are assured that the source material has been vetted should editors allow it to be transmitted.
Reporters should proceed with interviews on the assumption they are on the record. If the source wants to set conditions, these should be negotiated at the start of the interview. At the end of the interview, the reporter should try once again to move some or all of the information back on the record.
Before agreeing to use anonymous source material, the reporter should ask how the source knows the information is accurate, ensuring that the source has direct knowledge. Reporters may not agree to a source’s request that AP not pursue additional comment or information.
The AP routinely seeks and requires more than one source. Stories should be held while attempts are made to reach additional sources for confirmation or elaboration. In rare cases, one source will be sufficient — when material comes from an authoritative figure who provides information so detailed that there is no question of its accuracy.
We must explain in the story why the source requested anonymity. And, when it’s relevant, we must describe the source’s motive for disclosing the information. If the story hinges on documents, as opposed to interviews, the reporter must describe how the documents were obtained, at least to the extent possible.
The story also must provide attribution that establishes the source’s credibility; simply quoting “a source” is not allowed. We should be as descriptive as possible: “according to top White House aides” or “a senior official in the British Foreign Office.” The description of a source must never be altered without consulting the reporter.
We must not say that a person declined comment when he or she is already quoted anonymously. And we should not attribute information to anonymous sources when it is obvious or well known. We should just state the information as fact.
Stories that use anonymous sources must carry a reporter’s byline. If a reporter other than the bylined staffer contributes anonymous material to a story, that reporter should be given credit as a contributor to the story.
And all complaints and questions about the authenticity or veracity of
anonymous material — from inside or outside the AP — must be promptly brought to the news manager’s attention.
Not everyone understands “off the record” or “on background” to mean the same things. Before any interview in which any degree of anonymity is expected, there should be a discussion in which the ground rules are set explicitly.
These are the AP’s definitions:
On the record. The information can be used with no caveats, quoting the source by name.
Off the record. The information cannot be used for publication.
Background. The information can be published but only under conditions negotiated with the source. Generally, the sources do not want their names published but will agree to a description of their position. AP reporters should object vigorously when a source wants to brief a group of reporters on background and try to persuade the source to put the briefing on the record. These background briefings have become routine in many venues, especially with government officials.
Deep background. The information can be used but without attribution. The source does not want to be identified in any way, even on condition of anonymity.
In general, information obtained under any of these circumstances can be pursued with other sources to be placed on the record.
ANONYMOUS SOURCES IN MATERIAL FROM OTHER NEWS SOURCES:
Reports from other news organizations based on anonymous sources require the most careful scrutiny when we consider them for our report.
AP’s basic rules for anonymous-source material apply to pickups as they do in our own reporting: The material must be factual and obtainable no other way. The story must be truly significant and newsworthy. Use of sourced material must be authorized by a manager. The story must be balanced, and comment must be sought.
Further, before picking up such a story we must make a bona fide effort to get it on the record, or, at a minimum, confirm it through our own sources. We shouldn’t hesitate to hold the story if we have any doubts. If the source material is ultimately used, it must be attributed to the originating member and note their description of their sources.
AUDIO:
AP’s audio actualities must always tell the truth. We do not alter or manipulate the content of a newsmaker actuality in any way. Voice reports by AP correspondents may be edited to remove pauses or stumbles.
The AP does permit the use of the subtle, standard audio processing methods of normalization of levels, general volume adjustments, equalization to make the sound clearer, noise reduction to reduce extraneous sounds such as telephone line noise, and fading in and out of the start and end of sound bites _ provided the use of these methods does not conceal, obscure, remove or otherwise alter the content, or any portion of the content, of the audio. When an employee has questions about the use of such methods or the AP’s requirements and limitations on audio editing, he or she should contact the desk supervisor prior to the transmission of any audio.
BYLINES:
Bylines may be used only if the journalist was in the datelined location to gather the information reported. If a reporter in the field provides information to a staffer who writes the story, the reporter in the field gets the byline, unless the editor in charge determines that the byline should more properly go to the writer.
We give bylines to photographers, broadcast reporters and TV crew members who provide information without which there would be no story.
If multiple staffers report the story, the byline is the editor’s judgment call. In general, the byline should go to the staffer who reported the key facts. Or, one staffer can take the byline for one cycle, and another for the following cycle.
A double byline or editor’s note also can be used when more than one staffer makes a substantial contribution to the reporting or writing of a story. Credit lines recognize reporting contributions that are notable but don’t call for a double byline.
If either of the staffers with a double byline was not in the datelined location, we should say who was where in a note at the story’s end.
For roundups, the byline goes to the writer, with credit in an editor’s note to the reporters who contributed substantial information.
Regarding credits for staffers who do voice or on-camera work: We do not use pseudonyms or “air names.” Any exceptions — for instance, if a staffer has been known professionally by an air name for some time — must be approved by a manager.
CORRECTIONS/CORRECTIVES:
Staffers must notify supervisory editors as soon as possible of errors or potential errors, whether in their work or that of a colleague. Every effort should be made to contact the staffer and his or her supervisor before a correction is moved.
When we’re wrong, we must say so as soon as possible. When we make a correction in the current cycle, we point out the error and its fix in the editor’s note. A correction must always be labeled a correction in the editor’s note. We do not use euphemisms such as “recasts,” “fixes,” “clarifies” or “changes” when correcting a factual error.
A corrective corrects a mistake from a previous cycle. The AP asks papers or broadcasters that used the erroneous information to use the corrective, too.
For corrections on live, online stories, we overwrite the previous version. We send separate corrective stories online as warranted.
For graphics, we clearly label a correction with a FIX logo or bug, and clearly identify the material that has been corrected.
For photos, we move a caption correction and retransmit the photo with a corrected caption, clearly labeled as a retransmission to correct an error.
For video, corrections in scripts and/or shotlists are sent to clients as an advisory and are labeled as such.
For live broadcasts, we correct errors in the same newscast if at all possible. If not, we make sure the corrected information is used in the next appropriate live segment. Audio correspondent reports that contain factual errors are eliminated and, when possible, replaced with corrected reports.
DATELINES:
A dateline tells the reader where we obtained the basic information for a story. In contrast, a byline tells the reader that a reporter was at the site of the dateline.
When a datelined story contains supplementary information obtained in another location — say, when an official in Washington comments on a disaster elsewhere — we should note it in the story.
The dateline for video or audio must be the location where the events depicted actually occurred.
For voice work, the dateline must be the location from which the reporter is speaking. If a reporter covers a story in one location but does a live report from a filing point in another location, the dateline is the filing point.
FABRICATIONS:
Nothing in our news report — words, photos, graphics, sound or video — may be fabricated. We don’t use pseudonyms, composite characters or fictional names, ages, places or dates. We don’t stage or re-enact events for the camera or microphone, and we don’t use sound effects or substitute video or audio from one event to another. We do not “cheat” sound by adding audio to embellish or fabricate an event. A senior editor must be consulted prior to the introduction of any neutral sound (ambient sound that does not affect the editorial meaning but corrects a technical fault).
We do not ask people to pose for photos unless we are making a portrait and then we clearly state that in the caption. We explain in the caption the circumstances under which photographs are made. If someone is asked to pose for photographs by third parties and that is reflected in AP-produced images, we say so in the caption. Such wording would be: “XXX poses for photos.’
GRAPHICS:
We use only authoritative sources. We do not project, surmise or estimate in a graphic. We create work only from what we know.
We post or move a locator map only when we can confirm the location ourselves.
We create charts at visually proper perspectives to give an accurate representation of data. The information must be clear and concise. We do not skew or alter data to fit a visual need.
We credit our sources on every graphic, including graphics for which AP journalists have created the data set or database.
IMAGES:
AP pictures must always tell the truth. We do not alter or manipulate the content of a photograph in any way.
The content of a photograph must not be altered in PhotoShop or by any other means. No element should be digitally added to or subtracted from any photograph. The faces or identities of individuals must not be obscured by PhotoShop or any other editing tool. Only retouching or the use of the cloning tool to eliminate dust and scratches are acceptable.
Minor adjustments in PhotoShop are acceptable. These include cropping, dodging and burning, conversion into grayscale, and normal toning and color adjustments that should be limited to those minimally necessary for clear and accurate reproduction (analogous to the burning and dodging often used in darkroom processing of images) and that restore the authentic nature of the photograph. Changes in density, contrast, color and saturation levels that substantially alter the original scene are not acceptable. Backgrounds should not be digitally blurred or eliminated by burning down or by aggressive toning.
When an employee has questions about the use of such methods or the AP’s requirements and limitations on photo editing, he or she should contact a senior photo editor prior to the transmission of any image.
On those occasions when we transmit images that have been provided and altered by a source — the faces obscured, for example — the caption must clearly explain it.
Transmitting such images must be approved by a senior photo editor.
For video, the AP permits the use of subtle, standard methods of improving technical quality, such as adjusting video and audio levels, color correcting due to white balance or other technical faults, and equalization of audio to make the sound clearer _ provided the use of these methods does not conceal, obscure, remove or otherwise alter the content, or any portion of the content, of the image. The AP also allows digitally obscuring faces to protect a subject’s identity under certain circumstances. Such video must not be distributed without approval of the Editor of the Day or senior manager. In addition, video for online use and for domestic broadcast stations can be fonted with titles and logos.
Graphics, including those for television, often involve combining various photographic elements, which necessarily means altering portions of each photograph. The background of a photograph, for example, may be removed to leave the headshot of the newsmaker. This may then be combined with a logo representing the person’s company or industry, and the two elements may be layered over a neutral background.
Such compositions must not misrepresent the facts and must not result in an image that looks like a photograph — it must clearly be a graphic.
Similarly, when we alter photos to use as graphics online, we retain the integrity of the image, limiting the changes to cropping, masking and adding elements like logos. Videos for use online can be altered to add graphical information such as titles and logos, to tone the image and to improve audio quality. It is permissible to display photos online using techniques such as 360-degree panoramas or dissolves as long as they do not alter the original images.
OBSCENITIES, PROFANITIES, VULGARITIES:
We do not use obscenities, racial epithets or other offensive slurs in stories unless they are part of direct quotations and there is a compelling reason for them.
If a story cannot be told without reference to them, we must first try to find a way to give the reader a sense of what was said without using the specific word or phrase. If a profanity, obscenity or vulgarity is used, the story must be flagged at the top, advising editors to note the contents.
A photo containing something that could be deemed offensive must carry an editor’s note flagging it.
When a piece of video or audio contains something that might be deemed offensive, we flag it in the written description (rundown, billboard and/or script) so clients know what they are getting. Recognizing that standards differ around the world, we tailor our advisories and selection of video and audio according to customer needs.
We take great care not to refer readers to Web sites that are obscene, racist or otherwise offensive, and we must not directly link our stories to such sites.
In our online service, we link the least offensive image necessary to tell the story. For photo galleries and interactive presentations we alert readers to the nature of the material in the link and on the opening page of the gallery or interactive. If an obscene image is necessary to tell the story, we blur the portion of the image considered offensive after approval of the department manager, and flag the video.
PRIVACY:
We do not generally identify those who say they have been sexually assaulted or pre-teenage children who are accused of crimes or who are witnesses to them, except in unusual circumstances. Nor do we transmit photos or video that identify such persons. An exception would occur when an adult victim publicly identifies him/herself.
Senior editors/managers must be consulted about exceptions.
PROVIDING ATTRIBUTION:
We should give the full name of a source and as much information as needed to identify the source and explain why he or she is credible. Where appropriate, include a source’s age; title; name of company, organization or government department; and hometown.
If we quote someone from a written document — a report, e-mail or news release — we should say so. Information taken from the Internet must be vetted according to our standards of accuracy and attributed to the original source. File, library or archive photos, audio or videos must be identified as such.
For lengthy stories, attribution can be contained in an extended editor’s note, usually at the end, detailing interviews, research and methodology. The goal is to provide a reader with enough information to have full confidence in the story’s veracity.
QUOTATIONS:
The same care that is used to ensure that quotes are accurate should also be used to ensure that quotes are not taken out of context.
We do not alter quotations, even to correct grammatical errors or word usage. If a quotation is flawed because of grammar or lack of clarity, the writer must be able to paraphrase in a way that is completely true to the original quote. If a quote’s meaning is too murky to be paraphrased accurately, it should not be used.
Ellipses should be used rarely.
When relevant, stories should provide information about the setting in which a quotation was obtained — for example, a press conference, phone interview or hallway conversation with the reporter. The source’s affect and body language — perhaps a smile or deprecatory gesture — is sometimes as important as the quotation itself.
Use of regional dialects with nonstandard spellings should generally be limited to a writer’s effort to convey a special tone or sense of place. In this case, as in any interview with a person not speaking his or her native language, it is especially important that their ideas be accurately conveyed. Always, we must be careful not to mock the people we quote.
Quotes from one language to another must be translated faithfully. If appropriate, we should note the language spoken.
The video or audio editing of quotations or soundbites must not alter the speaker’s meaning. Internal editing of audio soundbites of newsmakers is not permitted. Shortened soundbites by cutaway or other video transition are permitted as long as the speaker’s meaning is not altered or misconstrued. Sound edits on videotape are permitted under certain circumstances, such as a technical failure. They must be done only after approval by a senior editorial manager.
RESPONSES:
We must make significant efforts to reach anyone who may be portrayed in a negative way in our stories, and we must give them a reasonable amount of time to get back to us before we move the story. What is “reasonable” may depend on the urgency and competitiveness of the story. If we don’t reach the parties involved, we must explain in the story what efforts were made to do so.
USE OF OTHERS’ MATERIAL:
An AP staffer who reports and writes a story must use original content, language and phrasing. We do not plagiarize, meaning that we do not take the work of others and pass it off as our own.
But in some respects, AP staffers must deal with gray areas.
It is common for an AP staffer to include in his or her work passages from a previous AP story by another writer — generally background, or boilerplate. This is acceptable if the passages are short. Regardless, the reporter writing the story is responsible for the factual and contextual accuracy of the material.
Also, the AP often has the right to use material from its members and subscribers; we sometimes take the work of newspapers, broadcasters and other outlets, rewrite it and transmit it without credit.
There are rules, however. When the material is exclusive, controversial or sensitive, we always credit it. And we do not transmit the stories in their original form; we rewrite them, so that the approach, content, structure and length meet our requirements and reflect the broader audience we serve.
Similar rules apply when we use material from news releases. Under no circumstances can releases reach the wire in their original form; we can use information and quotes from releases, but we must check the material, augment it with information from other sources, and then write our own stories.
We apply the same judgment in picking up material from members or from news releases that we use when considering information we receive from other sources. We must satisfy ourselves, by our own reporting, that the material is credible. If it does not meet AP standards, we don’t use it.
For video, if another broadcaster’s material is required and distributed, the name of that broadcaster shall be advised on the accompanying shotlist.
Pickups of audio and of television graphics are credited in billboards/captions when the member requests it.
CONFLICTS OF INTEREST
The AP respects and encourages the rights of its employees to participate actively in civic, charitable, religious, public, social or residential organizations.
However, AP employees must avoid behavior or activities — political, social or financial — that create a conflict of interest or compromise our ability to report the news fairly and accurately, uninfluenced by any person or action. Nothing in this policy is intended to abridge any rights provided by the National Labor Relations Act.
Here is a sampler of AP practices on questions involving possible conflict of interest. It is not all-inclusive; if you are unsure whether an activity may constitute a conflict or the appearance of a conflict, consult your manager at the onset.
EXPRESSIONS OF OPINION:
Anyone who works for the AP must be mindful that opinions they express may damage the AP’s reputation as an unbiased source of news. They must refrain from declaring their views on contentious public issues in any public forum, whether in Web logs, chat rooms, letters to the editor, petitions, bumper stickers or lapel buttons, and must not take part in demonstrations in support of causes or movements.
FAVORS:
Employees should not ask news sources or others they meet in a professional capacity to extend jobs or other benefits to anyone. They also should not offer jobs, internships or any benefits of being an AP employee to news sources.
FINANCIAL INTERESTS:
Associated Press employees who regularly write or edit business or financial news must always avoid any conflict of interest or the appearance of any conflict of interest in connection with the performance of these duties. For these reasons, these employees must abide by the following rules and guidelines when making personal investment and financial decisions.
These employees must not own stock, equities or have any personal financial investment or involvement with any company, enterprise or industry that they regularly cover for the AP. A technology writer, for example, must not own any technology equities; a retail industry writer must not own the stock of any department store or corporate enterprise that includes department stores. Staff members who are temporarily assigned to such coverage or editorial duties must immediately notify a manager of possible conflicts to determine whether the assignment is appropriate. If necessary, employees might be asked either to divest or to suspend any activity involving their holdings.
Editors and writers who regularly cover the financial markets may not own stock in any company. They may invest in equity index-related products and publicly available diversified mutual funds or commodity pools.
Financial news employees must also avoid investment activities that are speculative or driven by day-trading or short-term profit goals because such activities may create the impression that the employee is seeking to drive market factors or is acting upon information that is not available to the public. Instead, the personal financial activities and investments of these employees must be based upon the longer term and retirement savings. For these reasons, an employee covered by this policy should not buy and sell the same financial product within 60 days, unless he/she gains the permission of the department manager and is able to demonstrate financial need that is unrelated to information discussed or gained in the course of his/her employment. This trading limitation does not apply to equity-index funds, broadly diversified and publicly available mutual funds and commodity pools.
All employees must comply with federal and local laws concerning securities and financial transactions, including statutes, regulations and guidelines prohibiting actions based upon “inside information.” All employees are reminded that they may not act upon, or inform any other person of, information gained in the course of AP employment, unless and until that information becomes known to the general public.
Employees should avoid any conflict of interest or the appearance of a conflict of interest in the investments and business interests of their spouses or other members of their household with whom they share finances. They are expected to make every effort to assure that no spouse or other member of their household has investment or business interests that could pose such a conflict.
Employees should be aware that the investment activities and/or financial interests of their spouses or other individuals with whom they share financial interests may make it inappropriate for them to accept certain assignments. Employees must consult with their managers before accepting any such assignment.
Employees who are asked to divest holdings will be given one year from the date of the request to do so, in order to give them the opportunity to avoid market fluctuations.
When this document requires the sale of stock holdings, an employee can satisfy this requirement by putting the shares into a blind trust (or into an equivalent financial arrangement) that meets the same goal: preventing an individual from knowing, at any given time, the specific holdings in the account and blocking an individual from controlling the timing of transactions in such holdings. If AP assigns a staff member to a new job where mandatory divestiture would impose a financial hardship even after the one-year grace period, AP will reimburse the staff member up to a maximum of $500 for the reasonable costs of setting up a blind trust.)
FREELANCE WORK:
Individuals who seek to engage in non-AP work are subject to the following restrictions:
Freelance work must not represent a conflict of interest for either the employee or the AP.
Such activities may not interfere with the employees’ job responsibilities, including availability for newsgathering.
Such activities may not exploit the name of The Associated Press or the employee’s position with the AP without permission of the AP.
Inevitably, some employees will use material they accumulated in their AP work — notes, stories (either written or broadcast), images, videotape, graphics — for other-than-AP uses. The resulting product must be presented to the AP for its approval prior to submission to any outside publisher, purchaser or broadcaster. And under no circumstances should the AP incur expenses for research material that is not used for AP purposes.
FREE TICKETS:
We do not accept free tickets to sports, entertainment or other events for anything other than coverage purposes. If we obtain tickets for a member or subscriber as a courtesy, they must be paid for, and the member should reimburse the AP.
GIFTS:
Employees should politely refuse and return gifts from sources, public relations agencies, corporations and others hoping to encourage or influence AP news coverage or business. They may accept trinkets (like caps or mugs) of nominal value, $25 or less.
Books, tapes, recordings, CDs and other items received for review or provided as promotional material for an event may not be sold for personal gain. Items of more than nominal value, such as computer gear, must be returned. If appropriate, items can be donated to charities.
AP and its employees may accept discounts from companies only if those discounts are standard and offered to other customers.
We do not accept unsolicited contest awards from any organization that has a partisan or financial interest in our coverage; nor do we enter such contests.
OFFICIAL SCORERS:
Employees may not serve as official scorers at sports events.
OUTSIDE APPEARANCES:
Employees frequently appear on radio and TV news programs as panelists asking questions of newsmakers; such appearances are encouraged.
However, there is potential for conflict if staffers are asked to give their opinions on issues or personalities of the day. Advance discussion and clearance from a staffer’s supervisor are required.
Employees must inform a news manager before accepting honoraria and/or reimbursement of expenses for giving speeches or participating in seminars at colleges and universities or at other educational events if such appearance makes use of AP’s name or the employee represents himself or herself as an AP employee. No fees should be accepted from governmental bodies; trade, lobbying or special interest groups; businesses, or labor groups; or any group that would pose a conflict of interest. All appearances must receive prior approval from a staffer’s supervisor.
POLITICAL ACTIVITIES:
Editorial employees are expected to be scrupulous in avoiding any political activity, whether they cover politics regularly or not. They may not run for political office or accept political appointment; nor may they perform public relations work for politicians or their groups. Under no circumstances should they donate money to political organizations or political campaigns. They should use great discretion in joining or making contributions to other organizations that may take political stands.
Non-editorial employees must refrain from political activity unless they obtain approval from a manager.
When in doubt, staffers are encouraged to discuss any such concerns with their supervisors.
And a supervisor must be informed when a spouse — or other members of an employee’s household — has any ongoing involvement in political causes, either professionally or personally.
TRIPS:
If a trip is organized, and we think the trip is newsworthy, we go and pay our way. If we have a chance to interview a newsmaker on a charter or private jet, we reimburse the news source for the reasonable rate of the costs incurred — for example, standard airfare. There may be exceptional circumstances, such as a military trip, where it is difficult to make other travel arrangements or calculate the costs. Consult a manager for exceptions.
Society for News Design (SND)
Preamble: As members of the Society for News Design, we have an obligation to promote the highest ethical standards for visual journalism — for all journalism — as they apply to the values of accuracy, fairness, honesty, inclusiveness, and courage.
Accuracy
Accuracy is the indispensable value in journalism and must not be compromised. We must deliver error-free content, across all our media platforms. We must ensure that our content is a verifiable representation of the news and of our subjects. We promise never intentionally to mislead those who depend upon us for public service. We will correct errors promptly and prominently. We must be as accurate with our colleagues as we are with our audiences.
Honesty
We value original thought and expression. Our work will be free from fraud and deception — that includes plagiarism and fabrication. We will attribute content and honor copyrights. We will strive to keep news content free of special interests, inside or outside the news organization. We embrace the value of transparency, disclosing the thinking behind key decisions — from a credit line up to an editor’s note on the front page.
Fairness
We must be scrupulously fair. We recognize that our work can have great impact on the subjects we cover and therefore we must respectfully balance that against the public’s need to know. Even when it is impossible to avoid harm in the pursuit of truth telling, we will work hard to minimize that harm. We will listen to our critics. Our judgment in these matters must be based on our sense of right and wrong in a manner consistent with our professional values.
Inclusiveness
We will remain vigilant in our quest to combat prejudice and lead needed reforms. We will avoid stereotypes in reporting, editing, presentation, and hiring. Diversity, broadly defined, will be a hallmark of our work.
We accept the responsibility to understand our communities and to overcome bias with coverage that is representative of the constituent groups in the community. Over time, many groups, lifestyles, and backgrounds should see themselves and their values represented in the news.
Courage
Journalists need moral and, at times, physical courage to fulfill their responsibility to serve the public. It takes courage to stand behind values such as accuracy, honesty, fairness and inclusiveness. Such courage is necessary to achieve personal integrity and build credibility. This includes the courage to step beyond rigid boundaries. We must test conventional thinking explore innovative story-telling to help changing audiences understand an increasingly complex world.
Logic and literalness, objectivity and traditional thinking have their important place, but so must imagination and intuition, responsible creativity and empathy.
ProPublica
This Code is designed to supplement ProPublica’s Conflicts of Interest Policy (required by the Internal Revenue Service), and set out our expectations and aspirations for the conduct of our newsroom.
The mission of ProPublica is to practice and promote investigative journalism in the public interest. All of the values stated here, and the rules set out here, are intended to contribute to that mission. Much of the language below draws proudly on similar policies in place at distinguished American news organizations, including Dow Jones & Company, the Associated Press, the Washington Post and Time Inc. We do this because, while our entity is new, and our business model somewhat innovative, our ethics are neither. They reflect what we and others have learned over many years. At the same time, however, this Code is not immutable. Most of it consists of guidelines; exceptional circumstances may require exceptions to these rules. We expect to continue to learn, and, as we do so, to revise this document in light of further insight and experience.
Everyone affiliated with ProPublica is encouraged to discuss the matters within the ambit of this Code, and to make that discussion a continuing part of our work. Indeed, the most important wisdom about dealing with these questions is: When in doubt, ask.
It is an essential prerequisite for success in the news business that we tell the truth, and that our readers believe us to be telling them the truth. If we are not telling them the truth — or even if they, for any valid reason, believe that we are not — then ProPublica cannot succeed. ProPublica will suffer, for example, if our readers cannot assume that:
Our facts are accurate and fairly presented;
Our analyses represent our best independent judgments rather than our preferences, or those of our sources; and
There are no hidden agendas in any of our journalistic undertakings.
All organizations profess integrity. But the impact of our work on the work of others, and on their lives and fortunes, places special responsibilities upon all ProPublica employees.
These responsibilities include following several important guidelines in our approach in news-gathering, while writing and editing, and after publication:
We strive to identify all the sources of our information, shielding them with anonymity only when they insist upon it and when they provide vital information — not opinion or speculation; when there is no other way to obtain that information; and when we know the source is knowledgeable and reliable. To the extent that we can, we identify in our stories any important bias such a source may have. If the story hinges on documents, as opposed to interviews, we describe how the documents were obtained, at least to the extent possible. We do not say that a person declined comment when he or she is already quoted anonymously.
Editors have an obligation to know the identity of unnamed sources in our stories, so that editors and reporters can jointly assess the appropriateness of using their information. Sources need to understand this practice.
We don’t misidentify or misrepresent ourselves to get a story. When we seek an interview, we identify ourselves as ProPublica journalists.
We don’t pay for interviews.
We don’t plagiarize.
Nothing in our work should be fabricated. We don’t use pseudonyms, composite characters or fictional names, ages, places or dates.
Overall, we must be fair. Investigative reporting requires special diligence with respect to fairness. Whenever we portray someone in a negative light, we should make a real effort to obtain a response from that person, preferably in person. We should give them a reasonable amount of time to get back to us before we publish. What is “reasonable” may depend on the urgency and competitiveness of the story. If we don’t reach the parties involved, we should explain in the story what efforts were made to do so.
No story is fair if it omits facts of major importance or significance. Fairness includes completeness.
No story is fair if it misleads or deceives the reader. Fairness includes honesty — leveling with the reader.
Any time a question of fairness or accuracy is raised about any aspect of our work, whether by a source, subject or member of the public, the reporters involved should discuss the issue with their supervising editor and decide what response is warranted. When mistakes are made, they need to be corrected — fully, quickly and ungrudgingly.
Acceptance of a position at any level or in any part of ProPublica includes acceptance of individual responsibility to uphold ProPublica policies governing legal and ethical business practices. It also includes acceptance of individual responsibility for following all legal requirements and ethical business practices, as well as the responsibility to stress proper ethical behavior among colleagues and subordinates.
Any and all information and other material obtained by a ProPublica employee in connection with his or her employment is strictly the property of ProPublica. Such information includes not only our own work and that of our colleagues, but also information relating to future activities, including as-yet-unpublished news, as well as schedules for publishing the same. Such material should never be disclosed to anyone outside ProPublica, including friends and relatives. In no event should any information obtained in connection with ProPublica employment be disclosed privately to anyone until such information has been made available to the public.
Similarly, the use of ProPublica property of this sort — i.e. forthcoming news — as a basis for any investment decision is strictly prohibited. No employee with knowledge of any such forthcoming material may, prior to publication, buy or sell securities or in any way encourage or assist any other person in buying or selling securities, directly or indirectly, based on that information.
All ProPublica employees are expected to conduct themselves at all times in a manner that leaves no grounds for belief, or even suspicion, that:
The creation or dissemination, or non-dissemination, of any news or other information was influenced by a desire to affect the price of any security;
An employee’s personal financial situation with respect to investments is such that it creates a temptation to violate these rules; or
An employee is beholden to newsmakers, information providers or market participants, creating a temptation to violate these rules.
In making personal investments, all employees must avoid speculation or the appearance of speculation. No employee of ProPublica may engage in short selling of securities.
In addition, all managers and all news personnel must not engage in short-term trading of equity securities or of non-investment grade fixed-income securities; such employees must hold such securities for a minimum of six months unless, in order to meet some special need, they get prior permission for an earlier sale from the general manager of ProPublica. The six-month rule does not apply to publicly-available diversified open end and closed end mutual funds.
News personnel and members of management with any responsibility for news also must not buy or sell futures or options. However, these employees may invest in equity index-related products and publicly available mutual funds or commodity pools that invest in futures or options.
No news personnel assigned to report on a specific industry may buy or sell securities in any company engaged, in whole or significant part, in that industry, nor may any member of the immediate family of any such employee do so.
It is important to take care not to discuss confidential matters with family members or business or social acquaintances or in places where one can be overheard. Within ProPublica, confidential information should be divulged only to other employees who need to know the information in order to carry out their job responsibilities.
ProPublica employees should not offer or provide to customers or prospective customers, directly or indirectly, any gift, entertainment or reimbursement of expenses of more than nominal value or that exceeds customary courtesies for that time and place. Nor should employees offer or provide, directly or indirectly, any material, equipment or services to any individual in a position to make or influence any business or governmental decision affecting ProPublica.
Conversely, ProPublica employees should not solicit or accept, directly or indirectly, any payment, loan, services, equipment or any other benefit or thing of value, or any gift, entertainment or reimbursement of expenses of more than nominal value or that exceeds customary courtesies for that time and place from suppliers or customers, or from any company, individual or institution that furnishes or seeks to furnish news, information, material, equipment, supplies or services to ProPublica, or from anyone else with an actual or prospective business relationship with ProPublica. Thus, for instance, we accept no free trips. Beyond that, we neither seek nor accept preferential treatment that might be rendered because of the positions we hold.
ProPublica employees may not serve as directors or officers of any company devoted to profit-making, with the following exceptions:
Companies which are owned by an employee’s family, where the employee has obtained the written consent of the editor-in-chief of ProPublica;
Otherwise as approved in writing by the editor-in-chief of ProPublica.
Many organizations, for a variety of reasons, participate in the partisan political process, at various levels of government. As a publisher, ProPublica is different. ProPublica does not contribute, directly or indirectly, to political campaigns or to political parties or groups seeking to raise money for political campaigns or parties, and ProPublica does not and will not reimburse any employee for any political contribution made by an employee. All news employees and members of management with any responsibility for news should refrain from partisan political activity, including signing petitions, participating in marches or rallies, displaying lawn signs or making political contributions. Other political activities (including “issue oriented” activity) are permitted, but should not be inconsistent with this Code.
On the other hand, it is not the intention of ProPublica, or of this Code, to dissuade employees from participating actively in civic, charitable, religious, public, social or residential organizations. Such activities are permitted, and even encouraged, to the extent that they:
Do not detract from performance or effectiveness at work;
Are, in the case of Board memberships, disclosed to an employee’s direct supervisor;
Do not, by their extensiveness, cause ProPublica to subsidize or appear to subsidize the activity; and
Do not otherwise violate this Code. In the event that a conflict arises or may arise between an outside organization with which an employee is affiliated and the interests of ProPublica, the employee should refrain from participating in the conflicting or potentially conflicting activity.
No ProPublica employee should permit his or her ProPublica affiliation to be noted in any outside organization’s materials or activities without the express written approval of the editor-in-chief, managing editor or general manager, or unless of course the employee serves as a representative of ProPublica or unless the affiliation is merely noted as part of a broader description of the employee’s identity.
ProPublica takes this Code of conduct very seriously. All employees of ProPublica are responsible for compliance with all aspects of this Code. All new employees shall be required to read this Code at the outset of their employment, and to attest in writing that they have done so; all ProPublica employees shall be required, at the time this Code is first promulgated, to read it and so attest. In the case of all members of management, and all news personnel, such written attestations shall be required once each year.
The matters addressed by this Code are sufficiently important that any lapse in judgment within the areas covered here may be considered serious enough to warrant discipline up to and including dismissal.
ProPublica maintains an open door policy and suggests that employees share their questions, concerns, suggestions or complaints with someone who can address them properly. In most cases, an employee’s supervisor is in the best position to address an area of concern. However, if an employee is not comfortable speaking with his or her supervisor, or is not satisfied with the supervisor’s response, the employee is encouraged to speak with the director of finance & operations or anyone in management whom they are comfortable in approaching. Supervisors and managers are required to report suspected violations of this Code to the general manager. In serious cases, individuals should feel free to contact the general manager, the editor-in-chief, or the chairman of the board of directors directly. Violations or suspected violations may be submitted on a confidential basis by the complainant or may be submitted anonymously. Reports will be promptly investigated and appropriate corrective action will be taken if warranted by the investigation. Reports of violations or suspected violations will be kept confidential to the extent possible, consistent with the need to conduct an adequate investigation.
Anyone filing a complaint concerning a violation or suspected violation of this Code or other ProPublica policies must be acting in good faith and have reasonable grounds for believing the information disclosed indicates a violation. Any allegations that prove not to be substantiated and which prove to have been made maliciously or knowingly to be false will be viewed as a serious disciplinary offense.
No employee or director who in good faith reports a violation of this Code will suffer harassment, retaliation or adverse employment consequence. An employee who retaliates against someone who has reported a violation in good faith is subject to discipline up to and including dismissal.
Finally, and to repeat probably the most important point in dealing with these questions: When in doubt, ask.
The Journalists’ Creed (written by Walter Williams, founder of the world’s first school of journalism at the University of Missouri)
I believe in the profession of journalism.
I believe that the public journal is a public trust; that all connected with it are, to the full measure of their responsibility, trustees for the public; that acceptance of a lesser service than the public service is betrayal of this trust.
I believe that clear thinking and clear statement, accuracy and fairness are fundamental to good journalism.
I believe that a journalist should write only what he holds in his heart to be true.
I believe that suppression of the news, for any consideration other than the welfare of society, is indefensible.
I believe that no one should write as a journalist what he would not say as a gentleman; that bribery by one’s own pocketbook is as much to be avoided as bribery by the pocketbook of another; that individual responsibility may not be escaped by pleading another’s instructions or another’s dividends.
I believe that advertising, news and editorial columns should alike serve the best interests of readers; that a single standard of helpful truth and cleanness should prevail for all; that the supreme test of good journalism is the measure of its public service.
I believe that the journalism which succeeds best — and best deserves success — fears God and honors Man; is stoutly independent, unmoved by pride of opinion or greed of power, constructive, tolerant but never careless, self-controlled, patient, always respectful of its readers but always unafraid, is quickly indignant at injustice; is unswayed by the appeal of privilege or the clamor of the mob; seeks to give every man a chance and, as far as law and honest wage and recognition of human brotherhood can make it so, an equal chance; is profoundly patriotic while sincerely promoting international good will and cementing world-comradeship; is a journalism of humanity, of and for today’s world.
Part One: First Amendment Rights and Guarantees
Part Two: Public Information, Sunshine and the Freedom of Information Act
Part Three: Respect, Privacy and Freedom from Harm
Part Four: Transparency, Accountability and Independence
Part Five: Copyright Laws, Fair Use, Licensing and Insurance
Part Six: Journalism Organizations and Resources
Part Seven: Journalism Organizations’ Codes of Ethics
Credits
Credits
Editor: Stacey Woelfel
Graphic designer: Susan Yin
Research team: Liza Anderson, Jackson Bollinger, Olga Breslavets, MJ Cihak, Nate Compton, Nicky Cook, Bella Graves, Laura Harris, Jessie King, Suzy Le Bel, Morgan Magid, Cassidy Minarik, Abbey Reznicek, Jack Tideman, Rachel Tiedemann, Stacey Woelfel and Wyatt Wu.
International Documentary Association team: Carrie Lozano, Claire Aguilar, Dana Merwin and Ranell Shubert
