From the Legal Hotline (1-877-NEWS-LAW)

From the Legal Hotline (1-877-NEWS-LAW)

Q. Our small town’s council is closing their upcoming meeting to the public and doing it virtually but it appears part of the reason may be to keep out the small paper reporter (me) from the room. Their website has a statement that reads: “Due to COVID-19 members of the public including media outlets are only able to attend meetings virtually.” Last month, I attended the meeting in person, wore a mask and practiced social distancing (to the extent possible) and there was nothing said about my being present at the meeting.

In the past, there have been members of the council who have had an adversarial attitude toward our newspaper. Although I have no proof of this, it does seem to me that this could be an attempt to hinder us from covering the upcoming meeting in person. Although the meetings are broadcast virtually via “Zoom,” it is much more convenient to attend the meetings in person, with the ability to have an audio recording of the meeting.

My question is, does the council have the authority, especially under the Florida Sunshine Laws, to bar a reporter from attending the meeting in person? Are local governments commonly meeting only virtually around the state? Any push back or concerns by reporters/public being barred from the room?

A. We asked Deanna Shullman at the Shullman & Fugate law firm in Tampa to weigh in. Deanna explains that the council can hold the meeting virtually (as are a lot of other local governments around the state) but they cannot not single out and exclude a particular news organization or reporter from an open meeting. So, if they let others in, or treat them a certain way, they need to do the same for you. I would also note that even though virtual, the Sunshine Law requirements must still be followed. This means:

  1. reasonable notice must be provided of any discussion of public business between 2 or more members of the same board or commission
  2. the public must be allowed to attend and comment; and
  3. minutes must be taken.

The council will have to figure out how to accommodate those who want to “attend” a virtual meeting, including those who do not have internet access or computers. It seems like the council could feasibly open its public meeting room and also provide remote access via monitors, assuming that CDC requirements re: social distancing are enforced–but that will be their call.

Q. We received a threatening letter in the mail from a law firm in California stating we ran an image in 2016 that belongs to their ‘client’. The image was that of a seder plate we ran to accompany a press release on the Jewish congregation’s Passover plans. The press release had included an image, evidently not usable, so either the editor or the production person used something else. I have no idea where the image came from. I’ve asked the person who had the editing role at that time and our production manager who also was not in that role at the time. I’ve found the image listed 178 times and the first listing is from Getty Images, 2015 with a tag that says detail/photo/seder-plate-royalty-free…. Getty did offer the image royalty free in 2015 and sometime in 2016 they withdrew it from their catalog altogether which they confirmed.
In pursuing this, I’ve emailed them asking if at that time it was a royalty free image which my production personnel would have sought. In the meantime, this ‘law firm’ is now emailing me demanding a response or that I work out some sort of settlement with them. Having done my research, I find the firm is known for sending out masses of letters and emails to unsuspecting sources hoping to see what will ‘shake-out’. My first approach of ignoring it didn’t work.

A. Attached is an article I did in 2019 about these sorts of letters and suggested tips in avoiding and responding to them.

We also asked Jim Lake at the Thomas LoCicero firm to weigh in. He recommends asking for the registration certificate, making sure the allegedly registered photo matches the one that ran in your newspaper, and (if necessary) offering $200 for innocent infringement. But before going down that road, he suggests (as you have been doing) looking to see if the paper in fact had a Getty license in 2016. If so, you could probably resolve this by sending proof of the license (a Getty invoice from 2016 perhaps).
One other thought: Is the photo still online? Or is the concern based upon a use in 2016 only? If the use is not ongoing, the three-year statute of limitations has run.

Q. I’m forwarding the conversation from one of our local businessmen about a possible advertisement concept. As it stands, we don’t have an order for the actual advertising but can you give me general tips which will make me feel better about running with it. In the event we have a commitment for an ad I will let you see the final ad before we run with it.

A. It’s difficult to say much without seeing the actual ad copy first. But for now I would just leave you with a few points that Jim MaGuire with theThomas LoCicero firm has raised in the past that are important to keep in mind, and will limit your exposure:

  1. To the extent the ad is based upon verifiable facts from public records (court filings, county permits, etc.) it will certainly be more defensible.
  2.  It is best to avoid characterizing things as criminal conduct (“collusion,” etc.) if no criminal charges have been brought. Describe the known facts accurately, and the ad will be safer.
  3.  Keep in mind whether the ad is addressing the conduct of public officials (for which the actual malice standard applies) vs. private individuals. Need to be especially careful with private individuals.

Once the ad is in draft form, we are glad to look at specifics.

Q. Our small paper is considering running an ad from a local body shop, which would include an image of a framed Snap-On Tools ad the shop owner was given by the company back in the 1990s. The old framed ad contains an image of a Norman Rockwell-type painting. Any thoughts?

A. Since the photo is of a former advertisement, it is certainly possible that it is copyrighted. In terms of actual risk, I think the chances that Snap-On would see the ad and sue over it is pretty slim, but some minor risk does exist. Of course, Snap-On would probably first go after the local body shop.

Q. When someone doesn’t have enough money to file court documents, they can file for indigent status and file it at a much lower cost or free in some cases. The local legal services offices called this morning and asked if we were honoring the indigent paperwork or if we’d have to charge them to publish on behalf of an indigent client. Could you let me know what my answer is to this?

A. You don’t have an obligation to run ads for free (unless you want to)…even if the advertiser—pro bono legal services office has an indigent client. On the other hand, they may be asking if you are the newspaper of record for county clerk funds. Specifically, Florida law allows the county clerk of court to set up a “court docket fund” for the purpose of paying certain costs of publication. See s. 50.0711 The clerk of the court then can dispense the fund to the designated record newspaper in the county on a quarterly basis. You might want to check with your county clerk or its website to see if they have designated a record newspaper for such publication. Apparently, the designation can change from year to year based on a vote by the judges.

Q. We have a local citizen wanting to run an ad for her preferred mayoral candidate. This is a first for me, I think, but she is listing four cases she has filed against the city and current mayor. Is this the proper disclaimer? Also, although they are public records, is this kosher?

A. Any political advertisement not paid for by a candidate that is published, displayed, or circulated prior to, or on the day of, any election must prominently:

  • Be marked “paid political advertisement” or “pd. pol. adv.”
  • State the name and address of the persons paying for the advertisement.
  • State whether the advertisement and cost of production is paid for or provided in-kind by or at the expense of the entity publishing, displaying, broadcasting, or circulating the political advertisement. (Section 106.143(1)(c), Fla. Stat.)

It looks like she needs to use the word “advertisement.” Also, regarding the part about who paid for the ad, since the political ad says it is paid “by” the local citizen, I think that should be sufficient to show that the paper has not paid for it.

As for the substantive language, this is a political ad so typically there is some leeway on whether all claims are viewed as actually reciting facts. The actual malice standard would apply to any claim the office holder might bring. It appears like it is all based on public records, in this case the judicial complaints. Also, the first half, which recites events at commission meetings and the findings of the Ethics Advocate should be matters of public record that can be checked for accuracy. Assuming they’re accurate, this should be fine. Overall, I think the risk to the paper is low.