Home > Insights > Blogs > Internet Law Twists & Turns > Journalism still struggling with an Internet that never forgets

Journalism still struggling with an Internet that never forgets

Mark Sableman May 7, 2014

When an editor or news director selects a story as newsworthy and appropriate for publication at a particular place and time, should that story remain readily accessible at all times and in all places?

It’s question that’s only recently being asked, because, for most of the history of journalism, news accounts were published at a particular time and place, such as a daily newspaper or a nightly newscast, and they weren’t generally available thereafter. Librarians, historians, archivists, clipping services and a few others might have them, but that was it.

Now, because of the Internet, many if not most news accounts are readily available not only at the time and place of publication, but also worldwide, for years and years to come. As one researcher has put it, news stories now have a long tail.

Legally, when news organizations have the right to print or broadcast stories, they also have the right to post the stories on the Internet, and there is no legal limitation on how long the stories can be posted or how broadly they can be disseminated. Indeed, some news organization can accurately claim that their basic circulation is now worldwide, and that their readers expect news stories to be available for some time after first publication.

But continued publication of old information, particularly as to private persons, raises some ethical concerns. As Viktor Mayer-Schöenberger, a professor at Oxford, noted in his book, "Delete: The Virtue of Forgetting in the Digital Age," until the Internet’s long memory, most incidents involving ordinary persons, even if newsworthy, were quickly forgotten. But now, with the Internet, “our pasts are becoming etched like a tattoo into our digital skins,” as one writer stated. The result, Mayer-Schöenberger notes, may include not only unnecessary harm to individuals, but eventually a kind of dulling self-censorship, as Internet denizens learn to say nothing controversial or risky, lest it live with them forever.

The signature stories highlighting the risks of the Internet’s long tail memory have generally arisen through private postings, not news media reports. In one noted case, a woman’s self-posted photo of herself, drinking from a plastic cup and wearing a pirate hat, became known as the drunken pirate” photo, and it prevented her from getting several jobs. In another case, a Canadian academic researcher stated in a scholarly scientific article that he had once tried LSD. The article was uncovered through an Internet search by border officers, who then denied him entry in to the United States — a denial that continued for years.

News media respond

In the media field, some news organizations are rethinking lengthy postings of embarrassing accounts involving ordinary people. As one example, some newspapers are not posting mug shots, at least of ordinary people, or are taking them down after a certain period. Some newspapers are giving a fixed publication shelf life to reports of misdemeanor arrests, and a few have decided, because of the Internet’s long tail, not to publish such reports in the first place. And most news organizations recognize an increased responsibility to update and correct long-tail articles.

Many news gatekeepers have an instinctive dislike of any un-publishing activity. But a 2009 report for the Associated Press Managing Editors found that about 80 percent of editors would consider taking down stories in appropriate situations. Meanwhile, the Society of Professional Journalists (SPJ) is considering revisions to its ethical code that would emphasize that journalists should consider compassion and sensitivity toward those who might be adversely affected by news coverage, and remind journalists that not all information that is publicly available should be published.

Many private individuals who have been hurt by long-tail publication on the Internet – usually of false and disparaging statements, though sometimes of true but embarrassing reports – have turned to reputation management companies, like Reputation.com, which seek to optimize truthful and favorable accounts, and make the false or embarrassing account less prominent.

And because of some of the websites that exploit the freedom of the Internet, including websites that post mug shots and then attempt to extort payments from subjects in order to have them taken down, a number of state legislatures have attempted to outlaw commercial postings of mug shots. While these efforts probably will not stand under the First Amendment, they illustrate a growing public concern about abuses in long-tail publishing.

‘Extreme Makeover: Reputation Edition’

I was privileged to chair a panel discussion on this subject recently, at the always interesting “Media and the Law” conference sponsored annually by the University of Kansas School of Law and the Kansas City Metropolitan Bar Association Media Law Committee. Three co-panelists brought interesting perspectives to the issue.

Professor Deni Elliott of the University of South Florida, an ethicist, explained the ethics issues that journalists should consider. She highlighted some new concerns, including, for example, the effect of publication of news articles that report or imply conduct by children that causes harm — such stories, if available on the long tail, could haunt the children and their families for years. Prof. Elliott was a member of the committee that, a number of years ago, introduced to the SPJ Code of Ethics the principle that journalists should seek to “minimize harm” from their reporting. That principle, she said, flows directly from what she considers the basic “moral mantra” ascertainable from 2,000 years of Western moral philosophy: “Do your job and don’t cause unjustified harm.”

Leslie Hobbs, Reputation.com’s communications director, brought home the human side of the kinds of false and disparaging long-tail postings that her company deals with. David Korzenik, a New York lawyer with a broad media practice, explained the First Amendment concerns that will likely invalidate anti-mugshot-publication laws, and that should thwart attempts by litigants to obtain injunctions against future speech, even in the wake of libel judgments. But Korzenik also noted that the manner in which journalists use their First Amendment freedoms, and editorial discretion, will inevitably color the public and legal debate on these and similar issues.

Serious thinking is just beginning about the long tail of Internet publication. I was glad to have had the opportunity to contribute to one discussion on this important and fascinating subject.

Mark Sableman is a partner in Thompson Coburn’s Intellectual Property group. He is the editorial director of Internet Law Twists & Turns. You can find Mark on Twitter, and reach him at (314) 552-6103 or msableman@thompsoncoburn.com.