The news has been full of published stories lately about controversies in photojournalism, like the accuracy issues surrounding Magnum photojournalist Paolo Pellegrin’s POYi and the WORLD Press Photo contest photographs and captions. The common ethos of photojournalism is not to deceive the viewer so when editors choose to publish pictures that are overly retouched or have unpublished sections on in their newspapers, magazines and websites, they have a veracity problem. So, apparently do judges who pick winning images in contests. The White House News Photographers Association released a statement late last month that they were rescinding a WHNPA award given to a Washington Post photograph because of digital manipulation.
“The rules state: 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 and the image must be a truthful representation of whatever happened in front of the camera during exposure. Retouching to eliminate dust and scratches is acceptable. Reasonable adjustments in Photoshop are acceptable. These include cropping, dodging and burning, conversion into grayscale, and normal toning and color adjustments that restore the authentic nature of the photograph.”
“Excessive changes in density, contrast, color and saturation levels that alter the original scene are not acceptable. Backgrounds should not be digitally blurred or eliminated by burning down or by aggressive toning. Frames or borders outside the image area are not allowed nor is text—digital or otherwise—allowed on the image.”
The Washington Post, like most American news publishers, has an ethics policy that prohibits the digital manipulation of photographs. According to Washington Post photography director MaryAnne Golon, once Post editors discovered that a photographer at the publication had submitted an altered photo, they withdrew the picture from consideration and notified the WHNPA. However, Golon refused to identify the offending photographer. WHNPA president Ron Sachs did. “It was brought to our attention that the image ‘State Champion’ by Washington Post photographer Tracy Woodward, that received an Award of Excellence in the 2013 WHNPA ‘Eyes of History’ stills photo contest in the Sports Feature/Reaction category, was digitally manipulated in violation of the contest rules,” said Sachs.
In comparing the published images of Woodward’s ‘State Champion,’ it is clear that not only were there changes in density, contrast, color and saturation levels on the image subjects, but also the image of the referee was completely unpublished from the photograph. This is a serious ethics violation since viewers are not seeing the actual published picture when photojournalists alter images. Whether the Washington Post will take any action against the veteran Woodward, who also worked at the Washington Times, is open to debate since the publisher refused to release his name, but it seems that some of the underlying principles governing unpublishing should also be linked to internal photo manipulation policies for the sake of truthfulness, fairness, objectivity, accuracy and public accountability.
Michelle Shocked is amassing quite a collection of interviews and performance utterances that she probably wishes she could unpublished. In a classic PR clean-up, the indie-folk singer is already apologizing and claiming that her controversial anti-gay remarks have been “misinterpreted” in the wake of all of her US tour dates being cancelled. During a March 17 performance in San Francisco, Shocked reportedly said “I live in fear that the world will be destroyed if gays are allowed to marry. You can go on Twitter and say, ‘Michelle Shocked says God hates fags.’” Now, to CNN, Shocked is claiming that she does not believe that God hates homosexuals, and was only pointing out what some of His followers believe. She clarified after the backlash:
“I’m very sorry: I don’t always express myself as clearly as I should. But don’t believe everything you read on Facebook or Twitter. My view of homosexuality has changed not one iota. I judge not. And my statement equating repeal of Prop 8 with the coming of the End Times was neither literal nor ironic: it was a description of how some folks –- not me -– feel about gay marriage. […] If I could repeat the evening, I would make a clearer distinction between a set of beliefs I abhor, and my human sympathy for the folks who hold them.”
So Shocked apologizes for the hate speech she cannot unpublish and she seems to have an easier time of dealing with this new parish status than she does with reconciling her born-again Christian identity to her prior admission of lesbianism in 1990, which was published decades ago. The May 1990 print-only issue of OutLines, the Chicago paper that contained her ‘coming out’ interview was practically unpublished by virtue of practical obscurity, until Dallas Voice contributor Rex Wockner braved termite poop to dig out an old copy in 2008. Shocked has since called herself the ‘world’s greatest homophobe’ and denied all gay labels.
Performers like Shocked are at higher risks for very public meltdowns and social gaffes because they are in the public’s eye more than the average person. This makes it more important that these minor celebrities clearly express what they mean when they make potentially troubling statements. After all, those statements are not going to be unpublished. It also means that when they have had a change of heart in a position they once espoused, they should be prepared to explain since their prior words have likely been immortalized the press.
Any company that reports to credit bureaus can amend their own reports but refusing to delete an inaccurate credit report is against the law under the Fair Debt Collection Practices Act. This is important since the reports are supposed to be accurate; thus, if an error is made, the reporting company has to have the ability to correct the error given its potentially devastating effect on credit scores. The Fair Credit Reporting Act allows credit information to legally remain a part of a consumer’s credit record for seven years but the truth is this information does not have to remain on the record for the entire period. There is no law that prohibits credit reporters or collection agencies from deleting unfavorable information before the maximum federal reporting period for the account expires.
It is not uncommon for companies that report credit information to tell consumers that modifying their credit report information is impossible or illegal. It is not, but there are practical reasons why such companies are reluctant or flat out refuse to delete information. They often feel that engaging in this activity will make the credit bureaus view them as unreliable or terminate their contract because they are somehow violating their agreement. This situation is similar to how many publishers feel about their published content. Publishers often resist approving requests to unpublish information because they want to protect the integrity of their content and their own reputation with their audience. This resistance is there, even when the unpublishing request is made with an offer to pay for the service.
Still, consumers are unlikely to stop offering to pay publishers for unpublishing service because of the personal benefit that will accrue to them. Likewise, consumers will continue to try to negotiate with the credit reporters and collection agencies to remove negative information and collection accounts early by offering to pay off the debt if the collection agency will voluntarily remove its notation from their credit report. It is a pay for delete request and every reporting company has its own guidelines regarding the process. Whether the offer will be accepted will depend on the individual situation and whether the agent has the authorization to approve the request. No legislation is needed to address these types of situation which are a byproduct of our free market and leave the consumer in no worse position than he or she was in when the offer to pay to remove the information was made.
The Internet and social media platforms have moved more conversations online. The result of this has been more free speech issues and conflicts. An ongoing lawsuit filed last August is looking for legal rulings on the implications of unpublishing social media content, Facebook in this case, and whether social media can be considered a public forum.
In a rare lawsuit involving unpublishing social media content instead of creating it, the plaintiffs in Hawaii Defense Foundation v. City and County of Honolulu are arguing that the Honolulu Police Department (HPD) unpublished their comments and posts criticizing the department “in violation of their freedoms of speech” and banned the plaintiffs “from participating in the ‘public forum.’” They claim that their rights to due process were violated because both the deletions and bans were done with no explanation and “[n]o notice or opportunity to be heard.” Facebook, according to the plaintiffs, is an open public forum. Plaintiffs want safeguards put in place to afford due process to fundamental rights like the ones at issue, as well as their posts re-published and the bans lifted. HPD has admitted that there are no specific policies regarding managing and administrating the HPD Facebook page and comments are removed at their discretion.
The case is interesting because it is causing individuals and companies to ask whether deleting social media content will violate the law or rights of others. The HPD is a government entity and their Facebook page expressly stated that it was created as “a forum open to the public.” Traditionally public forums were physical places, not online platforms and pages, so it begs the question of how a court might define a social media public forum versus a private one. It is unclear what type of activity creates a change of status from one to the other and imposes the type of rights the plaintiffs’ alleged should be protected in an ostensibly public forum. This is important; after all, unpublishing social media content could lead to other lawsuits involving private matters as well.
The case is one of the first testing assumptions regarding electronic information and interactions. Just because the forum is social or digital media does not mean certain speech should be afforded less protections and everyone— individuals, businesses and government entities alike must be careful to respect and safeguard the rights of social media users. The First Amendment will continue to interpreted and applied to emerging technologies and electronic data. The lesson is to think before you unpublish free speech and expression.
People with arrest records are looking for creative ways to make their past disappear. One of the latest legal claims being explored by the accused is the right of publicity. It seems an odd choice to pursue in courts since mugshot websites have never suggested that the suspected offenders are endorsing their products. Moreover, courts might take a negative view of these types of filings, especially since most lawyers would shy away from such a claim in mugshot cases given the potential for Rule 11 sanctions. Still, as with most things in life there are exceptions.
Wired.com first broke the news about an Ohio putative class action premised on the right of publicity brought against a group of privately owned mugshot websites that sometimes charge to unpublish these arrest photos. On its face, it appears Toledo-based lawyer, Scott Ciolek, is wasting the court’s time with faulty legal reasoning in his class action lawsuit to get Ohio to extend the right to publicity to the publication of people’s mugshots. Using the right to publicity as the basis of the claim should fail as a matter of law because of all the First Amendment issues it raises. The underlying claim in the class action does not relate to the value of any of the individuals’ likenesses for the purpose of promotion or publicity, but rather, the value to the accused individual of keeping the public from learning about negative events in their past. This type of use of the persona of the accused is not endorsement as required under the statute. It is protected use under the First Amendment because the content reveals truthful and public information.
The right of publicity prohibits the commercial exploitation of an individual’s recognizable persona without permission through use of a name, image or photograph for promotional purposes. It is usually a state common law or statute distinctly promulgated in about half of the states that make up the United States and often applies to the unauthorized use of celebrity likeness in false advertising that suggests endorsement of a particular product or service. Ohio has such a statute codified on its books as Ohio Rev. Code § 2741.09(A)(6).
Ohio’s right of publicity statute clearly states that it does not apply to the use of an individual’s persona that is protected by the First Amendment to the United States Constitution as long as the use does not convey or reasonably suggest endorsement by the individual whose persona is at issue. Thus, it is not enough for the plaintiffs’ in the current Ohio case to claim violation of the right of publicity simply because requesting unpublishing the mugshots is a commercial transaction if a fee is charged. As the Ohio Second District Court of Appeals held in James v. Bob Ross Buick: “the value of the plaintiff’s name is not appropriated by mere mention of it, or by reference to it in connection with legitimate mention of his public activities; nor is the value of his likeness appropriated when it is published for purposes other than taking advantage of his reputation, prestige, or other value associated with him, for purposes of publicity.” Indeed, in the case of the accused with mugshots, the value is in keeping the public from learning about their arrests by hiding information that is in the public interest.
Ultimately, it is just as well that the plaintiffs in Ohio are relying on the right of publicity to bring this case to try and force the unpublishing of their mugshots from the Internet. It seems too flawed a legal theory to succeed under both the statute and current case law. That is a good thing given the significant impact a reversal of Ohio’s historical stance on the right of publicity would have on legitimate journalistic endeavors which have always included use and publication of public records like mugshots.
Believe it or not, most states in the United States do not have retraction statutes that currently protect online speech. They protect publishers of printed information, radio and television broadcast but not electronic publication. Some of the remaining states occasionally apply the retraction statutes to online speech but only in limited situations, usually involving traditional print media organizations. Ultimately, lack of express applicability of retraction statutes to online speech leaves a gaping hole in the protections that are traditionally afforded publishers.
Luckily some states are starting to close this hole. There is a new bill in town in Texas and it could have significant repercussion for all publishers, news organizations and private citizens alike. Texas House Bill 1759 (HB 1759) would protect all publishers of online information in their various formats by mandating that they be given the opportunity to correct, clarify or unpublish incorrect information before a defamation suit can be filed. The bill would apply to both print and online media. It would also help promote truth in publication and judicial efficiency.
Texas State Representative Todd Hunter, R-Corpus Christi worked with the Freedom of Information Foundation of Texas and the Texas Press Association in drafting HB 1759, which is basically a retraction statute that forces a prospective plaintiff to give a publisher an opportunity to correct, clarify, or unpublish false content before filing a defamation lawsuit. The publisher can request that proof of the falsity of the allegedly defamatory information be provided within 30 days and a time frame is clearly defined for making request. A request for correction has to be made within a year of the publication and within 90 days of the plaintiff becoming aware of the publication or suit cannot be brought. Moreover, if the plaintiff’s request is granted, and the correction, clarification, or retraction is published with equal visibility in a manner and medium reasonably likely to substantially reach the same audience, the plaintiff cannot be awarded punitive damages in a defamation suit.
HB 1759 will promote accuracy, truth and fairness in publication while dis-incentivizing filing defamation lawsuits if it is passed. Publishers and potential plaintiffs will be forced to work together to resolve the issue outside of court if there is a genuine problem with the publication. After all, damages will already be severely limited pre-litigation if the publisher complies with the new law. Publishers already have strong First Amendment protection for speech so plaintiffs often fail to prevail on defamatory claims unless the statements are made negligently or with actual malice.
HB 1759 is a positive, forward thinking law that gives the same rights equally to all speakers as it provides to the traditional media. This is especially important in the digital age, where small, independent publishers and ordinary citizens have become frontline watchdogs and investigative reporters in newsworthy areas increasingly abandoned by traditional news organizations.
The “Right to be Forgotten” has reared its ugly head again, this time in the UK. Officials there are threatening legal action against anyone who publishes online pictures of convicted child killer Jon Venables and his new identity under the principle that past bad acts should not be discoverable online. Google, Facebook and Twitter all have been ordered to unpublish any and all photos of Venables and his accomplice, Robert Thompson. Ironically, this harsh stance by UK law enforcement has only called more attention to a matter that would not have been noticed by most people.
Jon Venables was 10-years-old when he and classmate Robert Thompson kidnapped and murdered 2-year-old James Bulger. They were released from jail in 2001 under the protection of a court order banning publication of information which could reveal their new identities. Photos that purport to be of an adult Venables, now 30, have been appearing on social media sites using his new identity, since his parole was revoked in 2010 after he admitted to downloading child porn.
UK Attorney General Dominic Grieve has threatened legal action against anyone posting the convicts’ pictures online as contempt of court punishable by a jail sentence or fine. He said that given the many different images circulating online claiming to be of Venables or Thompson , “the [injunction against publication] order, and its enforcement, is therefore intended to protect not only Venables and Thompson but also those members of the public who have been incorrectly identified as being one of the two men.” Rehabilitation via unpublishing is a noble principle in theory and would mark the first time the Attorney General has brought contempt proceedings involving the use of social media. But is it the right cause to champion and use punitive measures for?
After all, giving a criminal a chance to start over anonymously is good, but it should not be at the expense of the public’s right to know, discuss and use public information about a potential danger in their midst. Indeed, child murderer Venables has now demonstrated a subsequent inappropriate sexual interest in children by downloading child porn. The stigma UK law enforcement seeks to avoid burdening Venables with, is one that he does not seem to be inclined to move past on his own, thanks also to the Internet.
Additionally, there is no practical way to regulate social media or search engines and make them responsible for the behavior of their users. Twitter responded to the unpublish order by saying that upon notification it would comply with the law, but that it would not proactively monitor users’ behavior to prevent the posting of pictures online. Obviously, publishers and social media platforms are rightly going to resist accepting user liability.
Ultimately, it appears that members of the general public who publish information on social media platforms may be subject to the same laws of contempt as the mainstream media, regardless of whether they have notice of anonymity orders. This is a bad sign of things to come if contempt charges are filed in these cases. Somehow it seems wrong to subject users to possible fines or imprisonment for publishing information from public criminal records when the ex-cons have other ways to demonstrate rehabilitation.
This year an important case will be decided by the European Court of Justice that could have serious consequences for online freedom of information laws and the protection of individual privacy. Spain’s data protection officials have taken Google to court to force the search giant to unpublish information that breaches a person’s privacy. It is based on a complaint from a Spanish man who ‘googled’ himself on the search engine and found an old newspaper report that said his house was being auctioned for failure to pay his taxes. One of Spain’s top courts, the Audiencia Nacional, upheld the man’s complaint and ordered Google to unpublish the information but Google appealed.
Google maintains that it should not be required to unpublish lawful content indexed in its search engine. They are not responsible for the content that is indexed. Google is only a host, not a controller of data. If companies such as Google are required to unpublish personal information, it will create a slippery slope leading to all sorts of data being unpublished for sham reasons that these companies are not qualified to make determinations on. The EU law would provide a means for mass manipulation of Internet content at the expense of free speech and expression. Surely, this is not the result that was intended.
Moreover, it is unclear as to whether foreign companies, like the US-based Google can be subject to EU privacy law. Spain’s data protection officials believe that the European Court of Justice has to decide if EU citizens have to go to US courts to exercise their privacy rights. Part of this ruling will hinge on whether search engines like Google can be held responsible for the damage the dissemination of personal information can cause for citizens. It is also part of the larger debate on “the right to be forgotten” proposals that would allow personal data to be unpublished from the Internet.
Low-profile loving former Sen. Scott Brown (R-Mass.) confounded people when he tweeted a series of after-midnight comments that made little sense. The messages: “Your brilliant Matt,” “Whatever” and “Bqhatevwr” were later unpublished. Still, Brown felt that an explanation was due and told the public that he was not drunk when he sent the tweets, rather he was essentially, pocket-tweeting.
“Anyone ever hear of pocket tweet, pocket dial? I mean it was pretty simple. I have an iPhone 5. If anyone has iPhone 5, the keys are small. It’s very, very sensitive. Ayla was teaching me how to get on Facebook and Twitter, and there were some areas I didn’t really understand,” said Brown. “After her concert, we were here in the living room and responded to a couple of people and then put it in my pocket.” Brown contends that he rarely drinks anymore. He allegedly was last drunk about 27 years ago at his bachelor party.
Of course, Brown’s explanation does not quite jive with some other tweets that preceded his own. Why bother to unpublish ‘pocket-tweets’ anyway? As Slate’s Dave Weigel pointed out with a screen shot, the three tweets sent out to Brown’s entire following appear to be curt replies to Twitter accounts who had earlier in the evening tweeted critical statements at Brown.
While we will never know the real intent behind Brown’s late night tweets and why he unpublished them, we do know that for the moment, he has decided against running in the special election to replace U.S. Senator John Kerry (D-Mass.). Instead, the new Fox News contributor plans to keep his eye on replacing Governor Deval Patrick (D) as governor in 2014 when he steps down after two terms.
Michelle Obama was scheduled to give a Secretary of State’s International Women of Courage Award to Samira Ibrahim, a Muslim Egyptian activist who said on the anniversary of terroristic attacks in America, “Today is the anniversary of 9/11. May every year come with America burning.” At least that is what her Twitter account had posted until it was unpublished under a suspect claim that Ibrahim’s account had been hacked. It was suspicious because out of 18,000 tweets Ibrahim has sent out in recent years, “she is denying authoring some four that were brought to our attention, two of which were anti-Semitic, two of which celebrated terrorism,” according to State Department spokeswoman Victoria Nuland.
Ibrahim is a prolific Tweeter. Among the other three tweets allegedly posted by some anonymous hacker is the one last July about a suicide bombing attack that said: “An explosion on a bus carrying Israelis in Burgas airport in Bulgaria on the Black Sea. Today is a very sweet day with a lot of very sweet news.”
The State Department presents the annual award celebrating International Women’s Day to women for “exceptional courage and leadership in advocating for women’s rights and empowerment, often at great personal risk,” and Ibrahim was to have been honored Friday along with nine other women at an event hosted by top US diplomat John Kerry and First Lady Michelle Obama. Ibrahim was initially chosen for the bravery and courage she displayed at the time of the Tahrir Square protests, personal experience with real police brutality and outspokenness against gender-based violence and other human rights abuses. Now, embarrassingly, the US is delaying giving the prestigious award to Ibrahim to check reports she had made anti-American and anti-Semitic hate remarks. Should not candidates be screened beforehand if one is going to be critical of their free speech?
More importantly, in the case of Ibrahim, the unpublished tweets at issue seem to be rather selective in nature, and but for screen shots from other activists and organizations, they might never have been saved for future historical reference. Indeed, they were neither the source of any complaints by Ibrahim at the time that they were posted nor were they targeted for unpublishing until it became clear that they might prevent her from receiving the International Women of Courage Award. Is unpublishing enough to temporarily demonstrate a change of heart on repellant views or at least to give a palatable shine to unpopular free speech? Should self-censorship be an acceptable cure when terroristic types of expression arise in the context of human rights? After all, Ibrahim was clear about her feelings about America and Israel long before she was picked to be honored for her courage.